THE 



FEDERALIST 



NEW CONSTITUTION, 



WRITTEN IN 1788 



ME. HAMILTON, MR. MADISON, AND MR. JAY 



AN APPENDIX 



CONTAINING THE LETTERS OF 



I^.A.OIFICXJS J^ISTJD JE3::ElXu-\rxiDXTJ-& 



ON THE 



PROCLAMATION OF NEUTRALITY OP 179 3; 



ALSO, 



ynO* "^^-^ ORIGINAL ARTICLES OF CONFEDERATION, 



AND THE 



CONSTITUTIONOF THE UNITED STATES. 



NEW EDITION: 

THE NUMBEK3 "WRITTEN BY MB. MADISON CORRECTED BY HIMSELF. 




y< ci- co ;v7r> 



HALLOWELL 



MASTERS, SMITH & C d^Sf^^^^^''" ' 



1857, 



A'" 



W 



C 



PREFATORY REMARKS 



The present edition of the Federalist contains all the numbers of 
that work as revised by their authors'; and it is the only one to which 
the remark will apply. Former editions, indeed, it is understood, had 
the advantage of a revisal from Mr. Hamilton and Mr. Jay, but the 
numbers written by Mr. Madison still remained in the state in which 
they originally issued from the press and contained many inaccuracies. 
The publisher of this volume has been so fortunate as to procure from 
Mr. Madison the copy of the work which that gentleman had preserved 
for himself, with corrections of the papers, of which he is the author, 
in his own hand. The publication of the Federalist, therefore, may be 
considered, in this instance, as perfect ; and it is confidently presented 
to the public as a standard edition. 

Some altercation has occasionally taken place concerning the author- 
ship of certain numbers of the Federalist, a few of those now ascer- 
tained to have been written by Mr. Madison having been claimed for Mr. 
Hamilton. It is difficult to perceive the propriety or utility of such an 
altercation ; for whether we assign the disputed papers to the one or to 
the other, they are all admitted to be genuine, and there will still remain 
to either of these gentlemen an unquestioned number sufficient to estab- 
lish for him a solid reputation for sagacity, wisdom and patriotism. It is 
not the extent of a man's writings, but the excellence of them, that con- 
stitutes his claim upon his contemporaries and upon posterity for the 
character of intellectual superiority : and to the reader, the difference in 
this case is nothing, since he will receive instruction from the perusal, 
let them have been written by whom they may. 

The present moment may be regarded as peculiarly favorable for the 
republication of this work. Mr. Hamilton is dead; and both Mr, Jay 
and Mr. Madison have retired from the busy scenes of life. The atmos- 
phere of political passions through which their principles and actions 
were lately viewed has disappeared, and has been replaced by one more 
purc and tranquil. Their political virtues are now manifest and almost 
universally admitted. Time, which tests the truth of every thing, has 
been just to their merits, and convj^rted the reproaches of party-spirit 
into expressions of gratitude for the usefulness of their labors. It is to 



iv rtlEFATORY REMARKS. 

be hoped that neither a mistaken zeal of friendship for departed worthy 
Bor an inclination to flatter living virtue, will induce any one to disturb 
this growing sentiment of veneration. 

To the Federalist the publisher has added the Letters of Pacificus, 
written by Mr. Hamilton, and an answer to those Letters by Helvidius, 
from the pen of Mr. Madison, As these two eminent men had labored 
in unison to inculcate the general advantages tb be derived from the 
Constitution, it cannot be deemed irrelevant to show in what particular 
point, as it respects the practical construction of that instrument, they 
afterwards differed. The community is, perhaps, always more enlight- 
ened by the candid criticism of intelligent conflicting minds than it is by 
their concurring opinions. 

In this collection, the Act of Confederation and the Constitution of the 
United States also find an appropriate place. They are the text upon 
which the Federalist is a commentary. By comparing these two nation- 
al constitutions, and reflecting upon the results of each, the defects of 
the former and the perfections of the latter will be easily perceived ; 
and the American people may be thence instructed, that however pru- 
dence may dictate the necessity of caution in admitting innovations upon 
established institutions, yet that it is at all times advisable to listen with 
attention to the suggestions and propositions of temperate and experi- 
enced statesmen, for the cure of political evils and the promotion of the 
general welfare. 

The Constitution of the United States has had, in the sunshine of peace 
and in the storm of war, a severe but impartial trial, and it has amply 
^fulfilled the expectations of its friends and completely dissipated the 
fears of its early opponents. It may, in truth, be asserted, that the ten 
;first declaratory and restrictive emendatory clauses, proposed at the ses- 
sion, of congress which commenced on the 4th of March, 1789, and which 
■were ratified by the legislatures of the states, fully satisfied the scruples 
of those who were inimical to that instrument as it was first adopted, 
.and by whom the amendments were considered necessary as a safe- 
guard for religious and civil liberty. Thus, and still furtjier, amended^ 
the Constitution, as a great rule of political conduct, has guided the 
[.public authorities of the United States through the unprecedented polit- 
ical vicissitudes and the perilous revolutionary commotions which have 
agitated the human race for the last quarter of a century, to a condition 
■at. once so prosperous, so commanding, and so happy, that it has wholly 
•utstripped &11 previous foresight and calculation. When we look back 
upon the state of inertness in which we reposed under the Act of Con- 
federation, to the languishment of our commerce, and the indifference 



PREFATORY REMARKS. . v 

with which, in that situation, we were regarded by foreign governments, 
and compare that disposition of things with the energy to which we were 
subsequently roused by the operation of the Constitution ; with the vast 
theatre on which, under the influence of its provisions, our maritime trade 
has been actively employed ; with the freedom and plenty which we 
enjoy at home, the respect entertained for the American name abroad, 
and the alacrity with which our favor and friendship are sought by the 
nations of the earth, our thankfulness to Providence ought to know no 
bounds, and to the able men who framed and have supported the Con- 
stitution, should only be limited by those paramount considerations which 
are indispensable to the perpetuation and increase of the blessings which 
have been already realized. 

The perspicuous brevity of the Constitution has left but little room for 
misinterpretation. But if at any time ardent or timid minds have exceed- 
ed or fallen short of its intentions ; if the precision of human language 
has, in the formation of this instrument, been inadequate to the expres- 
sion of the exact ideas meant to be conveyed by its framers ; if from the 
vehemence of party-spirit, it has been warped by individuals, so as to 
incline it either too much towards monarchy or towards an unmodified 
democracy; let us console ourselves with the reflection, that however 
these aberrations may have transiently prevailed, the essential prin- 
ciples of the Representative System of government have been well pre- 
served by the clear sighted common sense of the people ; and that our 
affections all concentre in one great object, which is the improvement 
and glory of our country. 

After deriving so many and such uncommon benefits from the Con- 
stitution, the notion of an eventual dissolution of this Union must be 
held, by every person of unimpaired intellect, as entirely visionary. 
The state governments, divested of scarcely any thing but national au- 
thority, have answered, or are competent to answer, every purpose of 
melioration within the boundaries of the territory to which they are 
respectively restricted ; whilst, in times of difficulty and danger, acting 
directly upon an intimate knowledge of local resources and feeling, they 
are enabled to aflford efficient aid to the exertions of the national govern- 
ment in the defence and protection of the republic. These truths are 
obvious : they have been demonstrated in times of domestic tranquillity, 
of internal commotion, and of foreign hostility. In return, the advan- 
tages which the national govertiment dispenses to the several states are 
keenly felt and highly relished. When the Constitution was ratified, 
Rhode Island and North Carolina, from honest but mistaken convictions, 
for a moment withheld their assent. But when Congress proceeded sol* 



vi . PREFATORY REMARKS. 

emnly to enact that the manufactures of those states should be consid- 
ered as foreign, and that the acts laying a duty on goods imported and 
on tonnage should extend to them, they hastened, with a discernment 
quickened by a sense of interest, and at the same time honorable to 
their patriotic views, to unite themselves to the confederation. 

The only alteration of importance which the Constitution has under* 
gone since its adoption, is that which changes the mc^e of electing the 
President and Vice President. It is believed, that all things being duly 
weighed, the alteration has been beneficial. If it enables a man to aim 
with m.ore directness, at the first office in the gift of the people, it 
equally tends to prevent the recurrence of an unpleasant contest for pre- 
cedency, between the partisans of any two individuals, in Congress, to 
which body in the last resort, the choice is referred. Besides, whether 
the Constitution should prescribe it or not, the people themselves would 
invariably designate the m-^n they intended for chief magistrate : a re- 
flection which may 'serve to convince us that the change in question is 
more in Jorm than in fact. 

To conclude, the appearance of so perfect an edition of the Federal- 
ist as the present must be allowed to be, may be regarded as the more 
fortunate, as the Journal of the Convention that framed the Constitu- 
tion is about to be published, and a new light to be thus shed upon the 
composition of that instrument. The Act of Confederation, and the 
Constitution itself, have been, by permission of Mr. Adams, the Secre- 
tary of State, carefully compared v/ith the originals deposited in the 
office of that department; and their accuracy may therefore be relied on, 
even to the punctuation. 

City of Washington, Marj, 1818. 



THE FEDERALIST. 



BY ALEXANDER HAMILTON. 
INTRODUCTION. 

After full experience of the insufficiency of the existing fed- 
eral government, you are invited to deliberate upon a new Consti- 
tution for the United States of America. The subject speaks its 
own importance ; comprehending in its consequences, nothing less 
than the existence of the UNION, the safety and welfare of the 
parts of which it is composed, the fate of an empire, in many 
respects, the most interesting in the world. It has been frequent- 
ly remarked, that it seems to have been reserved to the people 
of this country to decide, by their conduct and example, the im- i 
portant 'question, whether societies of men are really capable or 
not, of establishing good government from reflection and.choice, 
or whether they are forever destined to depend for their political 
constitution, on accident and force. If there be any truth in the 
remark, the crisis at which we are arrived may, with propriety, 
be regarded as the period when that decision is to be made ; and 
a wrong election of the part we shall act may, in this view, de- 
serve to be considered as the general misfortune of mankind. 

This idea, by adding the iiiducements of philanthropy to those 
of patriotism, will heighten the solicitude which all considerate 
and good- men must feel for the event. Happy will it be if our 
choice should be directed by a judicious estimate of our true in- 
terests, uninfluenced by considerations foreign to the public good. 
But this is more ardently to be wished for, than seriously to be 
expected. The plan off'ered to our deliberation, affects too many 
particular interests, innovates upon too many local institutions, 
not to involve in its discussion a variety of* objects extraneous to 
its merits, and of views, passions and prejudices little favorable to 
the discovery of truth. 

Among the most formidable of the obstacles which the new 
constitution will have to encounter, may readily be distinguished 
the obvious interest of a certain class of men in every State to 
resist all changes which may hazard a diminution of the power, 



8 THE FEDERALIST. 

emolument, and consequence of the offices they hold under the 
State establishments — and the perverted ambition of another 
class of men, who will either hope to aggrandize themselves by 
the confusions of their country, or will flatter themselves 'with 
fairer prospects of elevation from the subdivision of the empire 
into several partial confederacies, than from its union under one 
government. 

It is not, however, my design to dwell upon observations of this 
nature. I am aware it would be disingenuous to resolve indis- 
criminately the *^opposition of any set of men into interested or 
ambitious views, merely because their situations might subject 
them to suspicion. Candor will oblige us to admit, that even such 
men may be actuated by upright intentions ; and it cannot be 
doubted, that much of the opposition, which has already shown 
itself, or that may hereafter make its appearance, will spring from 
sources blameless at least, if not respectable — the honest errors 
of minds led astray by preconceived jealousies and fears. > So 
numerous indeed and so powerful are the causes which serve to 
give a false bias to the judgment, that we, upon many occasions, 
see wise and good men on the wrong as well as on the right side 
of questions of the first magnitude to society. This circum- 
stance, if duly attended to, would always furnish a lesson of mod- 
eration to those, v/ho are engaged in any controversy, however 
well pursuaded of being in the right. And a further reason for 
caution in this respect, might be drawn from the reflection, that 
we are not always sure, that those who advocate the truth are 
actuated by purer principles than their antagonists. Ambition, 
avarice, personal animosity, party opposition, and many other mo- 
tives, not more laudable than these, are apt to operate as well 
upon those who support, as upon those who oppose, the right 
side of a question. Were there not even these inducements to 
moderation, nothing could be more ill-judged than that intolerant 
spirit, which has, at all times, characterized political parties. For, 
in politics as in religion, it is equally absurd to aim at making 
proselytes by fire and sword. Heresies in either can rarely be 
cured by persecution. 

And yet, just as these sentiments must appear to candid men, 
we have already sufficient indications that it will happen in this, 
as in all former cases of great national discussion. A torrent of 
angry and malignant passions will be let loose. To judge from 
the conduct of the opposite parties, we shall be led to conclude, 
that they will mutually hope to evince the justness of their opin- 
ions, and to increase the number of their converts, by the loudness 
of their declamations, and by the bitterness of their invectives. 
An enlightened zeal for the energy and efficiency of government, 
will be stigmatized as the offspring of a temper fond of power, and 
hostile to the principles of liberty. An over scrupulous jealousy 



THE FEDERALIST. 9 

of danger to the rights of the people, which is more commonly 
the fault of the head than of the heart, will be represented as 
mere pretence and artifice — the stale bait for popularity at the 
expense of public good. It will be forgotten, on the one hand, 
that jealousy is the usual concomitant of violent love, and that 
the noble enthusiasm of liberty is too apt to be infected with a 
spirit of narrow and illiberal distrust. On the other hand, it will 
be equally forgotten, that the vigor of government is essential to 
the security of liberty ; that in the contemplation of a sound and 
well-informed judgment, their interests can never be separated ; 
and that a dangerous ambition more often lurks behind the spe- 
cious mask of zeal for the rights of the people, than under the 
forbidding appearances of zeal for the firmness and efficiency of 
government. History will teach us. that the former has been, 
found a much more certain road to the introduction of despotism 
than the latter, and that of those men who have overturned the 
liberties of republics, the greatest number have begun their career, 
by paying an obsequious court to the people ; commencing dem- 
agogues, and ending tyrants. 

In the course of the preceding observations it has been my aim, 
fellow citizens, to put you upon your guard against all attempts, 
from whatever quarter, to influence your decision in a matter of 
the utmost moment to your welfare, by any impressions, other 
than those which may result from the evidence of truth. You will, 
no doubt, at the same time, have collected from the general scope 
of them, that they proceed from a source not unfriendly to the 
new constitution. Yes, my countrymen, I own to you, that after 
having given it an attentive consideration, I am clearly of opinion, 
it is your interest to adopt it. I am convinced, that this is the 
safest course for your liberty, your dignity, and your happiness. 
I affect not reserves which I do not feel, 1 will not amuse you 
with an appearance of deliberation, when I have decided. I 
frankly acknowledge to you my convictions, and I will freely lay 
before you the reasons on which they are founded. The con- 
sciousness of good intentions disdains ambiguity. I shall not 
however multiply professions on this head. My motives must 
remain in the depository of my own breast : my arguments will 
be open to all, and may be judged of by all. They shall at least 
be offered in a spirit which will not disgrace the cause of truth. 

I propose, in a series of papers, to discuss the following inter- 
esting particulars. — The utility of the UNION to your political 
prosperity — The insufficiency of the present confederation to 
preserve that Union — The necessity of a government at least 
equally energetic with the one proposed, to the attaitiment of 
this object — The conformity of the proposed constitution to the 
true principles of republican government — Its analogy to your 
own state constitution — And lastly, The additional security, 

2 



10 THE FEDERALIST. 

which its adoption will afford to the preservation of that species 
of government, to liberty, and to property. 

In the progress of ihis discussion, I shall endeavor to give a sat- 
isfactory answer to all the objections which shall have made their 
appearance, that may seem to have any claim to attention. 

It may perhaps be thought superfluous to offer arguments to 
prove the ntility of the UNION, a point, no doubt, deeply en- 
graved on the hearts of the great body of the people in every 
state, and one which, if may be imagined, has no adversaries. 
But the fact is, that we already hear it whispered in the private 
circles of those who oppose the new constitution, that the Thirteen 
States are of too great extent for any general system, and that we 
must of necessity, resort to separate confederacies of distinct por- 
tions of the whole.* This doctrine will, in all probability, be 
gradually propagated, till it has votaries enough to countenance 
its open avowal. For nothing can be more evident, to those who 
are able to take,' an enlarged view of the subject, than the alter- 
native of an adoption of the constitution or a dismemberment of 
the Union. It may, therefore, be essential to examine particularly 
the advantages of that Union, the certain evils, and the probable 
dangers, to v\^hich every state will be exposed from its dissolu- 
tion. This shall accordingly be done. PUBLIUS. 



BY JOHN JAY. 
CONCERNING DANGERS FROM FOREIGN FORCE AND INFLUENCE. 

When the people of America reflect, that the question now 
submitted to their determination, is on6 of the most important 
that has engaged, or can well engage, their attention, the propriety 
of their taking a very comprehensive, as well as a very serious, 
view of it, must be evident. 

Nothing is more certain than the indispensable" necessity of gov- 
ernment ; and it is equally undeniable, that whenever and howev- 
er it is instituted, the people must cede to it some of their natural 
rights, in order to vest it with requisite powers. It is well worthy 
of consideration, therefore, whether it would conduce more to the 
interest of the people of America, that they should, to all general 
purposes, be one nation, under one federal government, than that 
they should divide themselves into separate confederacies, and give 

* The same idea, tracing the arguments to their consequences, is held out in 
several of the late publications against the New Constitution. 



THE FEDERALIST. 11 

to the head of each, the same kind of powers which they are 
advised to place in one national government. 

It has until lately been a received and uncontradicted opinion, 
that the prosperity of the people of America depended on their 
continuing firmly united, and the wishes, prayers, and efforts of 
our best and wisest citizens have been constantly directed to that 
object. But politicians now appear, who insist that this opinion 
is erroneous, and that instead of looking for safety and happiness 
in union, we ought to seek it in a division of the States into dis- 
tinct confederacies or sovereignties. However extraordinary this 
new doctrine may appear, it nevertheless has its advocates ; and 
certain characters who w-ere formerly mnch opposed to it, are at 
present of the number. Whatever may be the arguments or in- 
ducements which have wrought this change in the sentiments 
and declarations of these gentlemen it certainly would not be 
wise in the people at large to adopt these new political tenets, 
without being fully convinced that they are founded in truth and 
sotmd policy. 

It has often given me pleasure to observe, that independent 
America was not composed of detached and distant territories, 
but that one connected, fertile, wide-spreading country, was the 
portion of our western sons of liberty. Providence has in a par- 
ticular manner blessed it with a variety of soils and productions, 
and watered it with innumerable streams, for the delight and ac- 
commodation of its inhabitants. A succession of navigable wat- 
ers forms a kind of chain round its borders, as if to bind it to- 
gether ; while the most noble rivers in the world, running at 
convenient distances, present them with highways for the easy 
communication of friendly aids, and the mutual transportatioa 
and exchange of their various commodities. 

With equal pleasure 1 have as often taken notice, that Provi- 
dence has been pleased to give this one connected country to one 
united people ; a people descended from the same ancestors^ 
speaking the same language, professing the same religion, attach- 
ed to the same principles of government, very similar in their 
manners and customs, and who, by their joint counsels,^ arms and 
efforts, fighting side by side throughout a long and bloody war, 
have nobly established their general liberty and independence. 

This country and this people seem to have been made for each 
other, and it appears as if it was the design of Providence, that 
an inheritance so proper and convenient for a band of brethren, 
united to each other by the strongest ties, should never be split 
into a number of unsocial, jealous, and alien sovereignties. 

Similar sentiments have hitherto prevailed among all orders and 
denominations of men among us. To all general purposes we 
have uniformly been one people ; each individual citizen every- 
where enjoying the same national rights, privileges, and protection. 



12 THE FEDERALIST. 

As a nation we have made peace and war : as a nation we have 
vanquished. our common enemies : as a nation we have fornied 
alliances and made treaties, and entered into various compacts 
and conventions with foreign states. 

A strong sense of the value and blessings of union induced the 
people, at a very early period, to institute a federal government to 
preserve and perpetuate it. They formed it almost as soon as 
they had a political existence, nay, at a time, when their habita- 
tions were in flames, when many of them were bleeding in the 
field, and when the progress of hostility and desolation left little 
room for those calm and mature inquiries and reflections, which 
must ever precede the formation of a wise' and well-balanced 
government for a free people. It is not to be wondered at, that 
a government instituted in times so inauspicious, should on ex- 
periment be found greatly deficient, and inadequate to the pur- 
pose it was intended to answer. 

This intelligent people perceived and regretted these defects. 
Still continuing no less attached to union, than enamored of liber- 
ty, they observed the danger which immediately threatened the 
former and more remotely the latter ; and being persuaded that 
ample security for both could only be found in a national govern- 
ment more wisely framed, they, as with one voice, convened the 
late convention at Philadelphia, to take that important subject 
under consideration. 

This convention, composed of men who possesed the confidence 
of the people, and many of whom had become highly distin- 
guished by their patriotism, virtue, and wisdom in times which 
tried the souls of men, undertook the arduous task. In the mild 
season of peace, with minds unoccupied by other subjects, they 
passed many months in cool, uninterrupted, and daily consulta- 
tions; and finally, without having been awed by power, or in- 
fluenced by any passion, except love for their country, they pre- 
sented and recommended to the people the plan produced by 
their joint and very unanimous councils. 

Admit, for so is the fact, that this plan is only recommended, not 
imposed, yet let it be remembered, that it is neither recommended 
to blmd approbation, nor to blind reprobation ; but to that sedate 
and candid consideration, which the magnitude and importance of 
the subject demands, and which it certainly ought to receive. But, 
as has been already remarked, it is more to be wished than ex- 
pected, that it may be so considered and examined. Experience 
on a former occasion teaches us not to be loo sanguine in such 
hopes. It is not yet forgotten, that well grounded apprehensions 
of imminent danger induced the people of America to form the 
memorable congress of 1774. That body recommended certain 
measures to their constituents, and the event proved their wisdom : 
yet it is fresh in our memories, how soon the press began to teem 



• THE FEDERALIST. 13 

with pamphlets and weekly papers against those very measures. 
Not only many of the officers of government, who obeyed the dic- 
tates of personal interest, bnt others, from a mistaken estimate of 
consequences, from the undue influence of ancient attachments, or 
whose ambition aimed at objects which did not correspond with 
the public good, were indefatigable in their endeavors to persuade 
the people to reject the advice of that patriotic congress. Many 
indeed were deceived and deluded, but the great majority reasoned 
and decided judiciously ; and happy they are in reflecting that 
they did so. 

They considered that the congress was composed of many wise 
and experienced m^. That being convened from different parts 
of the country, they brought with them and communicated to 
each other a variety of useful information. That in the course 
of the time they passed together in inquiring into and discussing 
the true interests of their country, they must have acquired very 
accurate knowledge on that head. ' That they were individually 
interested in the public liberty and prosperity, and therefore that 
it was not less their inclination, than their duty, to recommend 
such measures only, as after the most mature deliberation they 
really thought prudent and advisable. 

These and similar considerations then induced the people to 
rely greatly on the judgment and integrity of the congress; and 
they took their advice, notwithstanding the various arts and en- 
deavors used to deter and dissuade them from it. But if the 
people at large had reason to confide in the men of that congress, 
few of whom had then been fully tried or generally known, still 
greater reason have they now to respect the judgment, and ad- 
. vice of the convention ; for it is well known that some of the 
most distinguished members of that congress, who have been 
since tried and justly approved for patriotism and abilities, and 
who have grown old in acquiring political information, were also 
members of this convention, and carried into it their accumulated 
knowledge and experience. 

It is worthy of remark, that not only the first, but every suc- 
ceeding congress, as well as the late convention, have invariably 
joined with the people in thinking that the prosperity of America 
depended on its union. To preserve and perpetuate it, was the 
great object of the people in forming that convention, and it is 
also the great object of the plan which the convention has advised 
them to adopt. With what propriety, therefore, or for what good 
purposes, are attempts at this particular period made, by some men, 
to depreciate the importance of the union ? Or why is it suggested 
that three or four confederacies would be better than one ? I am 
persuaded in my own mind that the people have always thought 
right on this subject, and that their universal and uniform attach- 
ment to the cause of the union, rests on great and weighty 



14 THE FEDERALIST. » 

"reasons. They who promote the idea of substituting a number 
of distinct confederacies in the room of the plan of the conven- 
tion, seem clearly to foresee that the rejection of it would put 
the continuance of the union in the utmost jeopardy : that cer- 
tainly would be the case ; and I sincerely wish that it may be as 
clearly foreseen by every good citizen, that whenever the disso- 
lution of the union arrives, America will have reason to exclaim 
in the words of the poet, " Farewell ! a long farewell, to 

ALL MY GREATNESS." PUBLIUS. 



nSTTJnVLBEPl III- 

BY JOHN JAY. 
THE SAME SUBJECT CONTINUED. 



It is not a new observation that the people of any country (if, 
like the Americans, intelligent and well-informed,) seldom adopt, 
and steadily persevere for many years in any erroneous opinion 
respecting their interests. That consideration naturally tends to 
create great respect for the high opinion which the people of 
America have so long and uniformly entertained of the importance 
of their continuing firmly united under one federal government, 
vested with sufficient powers for all general and national purposes. 

The more attentively J consider and investigate the reasons 
which appear to have given birth to this opinion, the, more I be- 
come convinced that they are cogent and conclusive. 

Among the many objects to which a wise and free people find 
it necessary to direct their attention, that of providing for their 
sajety seems to be the first. The safety of the people doubtless 
has relation to a great variety of circumstances and considera- 
tions, and consequently affords great latitude to those who wish 
to define it precisely and comprehensively. 

At present 1 mean only to consider it as it respects security for 
the preservation of peace and tranquillity, as well against dan- 
gers from foreign arms and injluence, as against dangers arising 
from domestic causes. As the former of these comes first in cr- 
uder, it is proper it should be the first discussed. Let us there- 
fore proceed to examine whether the people are not right in their 
opinion, that a cordial union under an efficient national govern- 
ment, affords them the best security that can be devised against 
hostilities from abroad. 

The number of wars which have happened or may happen in 
the world, will always be found to be in proportion to the num- 
ber and weight of the causes, w^hether real or pretended, which 



THE FEDERALIST. 15 

♦ ■ 

provoke or invite them. If this remark be just it becomes useful 
to inquire, whether so many Jits^ causes of war are hkely to be 
given by united America, as by disunited America ; for if it 
should turn out that united Americg. will probably give the few- 
est, then it will follow, that in this respect, the union tends most 
to preserve the people in a state of peace with other nations. 

The just causes of war for the most part arise either from vio- 
lations of treaties, or from direct violence. America has already 
formed treaties with no less than six foreign nations, and all of 
them, except Prussia, are maritime, and therefore able to armoy 
and injure us; she has also extensive commerce with Portugal, 
Spain, and Britain, and with respect to the two latter, has the 
additional circumstance of neighborhood to attend to. 

It is of high importance to the peace of America, that she ob- 
serve the law of nations towards all those powers ; and to me it 
appears evident that this will be more perfectly and punctually 
done by one national government, than could be either by thir- 
teen separate states, or by three or four distinct confederacies. 
For this opinion various reasons may be assigned. 

When once an eflicient national government is established, the 
best men in the country will not only consent to serve, but will 
also generally be appointed to manage it ; for although town, or 
county, or other contracted influence, may place men in state as- 
semblies, or senates, or courts of justice, or executive departments ; ■ 
yet more general and extensive reputation for talents and other 
qualifications, will be necessary to recommend men to oflices 
under the national government, especially, as it will have the 
widest field for choice, and never experience that want of proper 
persons which is not uncommon in some of the states. Hence it 
will result, that the administration, the political counsels, and the 
judicial decisions of the national government, will be more wise, 
systematical, and judicious, than those of individual states, and ' 
consequently more satisfactory with respect to the other nations, 
as well as more safe with respect to ourselves. 

Under the national government, treaties and articles of treaties, 
as well as the laws of nations, will always be expounded in one 
sense, and executed in the same manner ; whereas adjudications 
on the same, points and questions, in thirteen states, or in three 
or four confederacies, will not always accord or be consistent ; 
and that, as well from the variety of independent courts and 
judges appointed by different and independent governments, as 
from the different local laws and interests which may affect and 
influence them. The wisdom of the convention, in committing 
such questions to the jurisdiction and judgment of courts ap- 
pointed by, and responsible only to ons national government, 
cannot be too much commended. 

The prospect of present loss or advantage, may often tempt the 



16 THE FEDERALIST. 

* 

governing party in one or two states to swerve from good faith 
and justice ; but those temptations not reaching the other stat)3s 
and consequently having Httle or no influence on the nationa 
government, the temptations will be fruitless, and good faith and 
justice preserved. The case of the treaty of peace with Britain, 
adds great weight to this reasoning. 

If even the governing party in a state should be disposed to 
resist such temptations, yet as such temptations may, and com- 
monly do, result from circumstances peculiar to the state, and 
may affect a great number of the inhabitants, the governing par- 
ty may not always be able, if willing, to prevent the injustice 
meditated, or to punish the aggressors. But the national govern- 
ment not being affected by those local circumstances, will neither 
be induced to commit the wrong themselves, nor want power or 
inclination to prevent, or punish its commission by others. 

So far therefore as either designed or accidental violations of 
treaties and of the laws of nations afford juat causes of war, 
they are less to be apprehended under one general government, 
than under several lesser ones, and in that respect the former 
most favors the safety of the people. 

As to those just causes of war which proceed from direct and 
unlawful violence, it appears equally clear to me, that one good 
national government aftbrds vastly more security against dangers 
of that sort, than can be derived from any other quarter. 

Such violences are more frequently occasioiied by the passions 
and interests of a part than of the whole ; of one or two states 
than of the union. Not a single Indian war has yet been pro- 
duced by aggressions of the present federal government, feeble 
as it is ; but there are several instances of Indian hostilities hav- 
ing been provoked by the improper conduct of individual states, 
who, either unable or unwilling to restrain or punish offences, 
have given occasion to the slaughter of many innocent inhabitants. 

The neighborhood of Spanish and British territories, bordering 
on some states, and not on others, naturally confines the causes 
of quarrel more immediately to the borderers. The bordering 
states, if any, will be those who, under the impulse of sudden 
irritations, and a quick sense of apparent interest or injury, will 
be most likely, by direct violence, to excite war with those nations ; 
and nothing can so effectually obviate that danger as a national 
government, whose wisdom and prudence will not be diminished 
by the passions which actuate the parties immediately interested. 

But not only fewer just causes of war will be given by the na- 
tional government, but it will also be more in their power to ac- 
commodate and settle them amicably. They will be more tem- 
perate and cool, and in that respect, as well as in others, will be 
more in capacity to act with circumspection than the offending 
state. The pride of states, as well as of men, naturally disposes 



THE FEDERALIST. 17 

them to justify all their actions, and opposes their acknowledg- 
ing, correcting, or repairing their errors and offences. The na- 
tional government in such cases will not be affected by this pride, 
but will proceed with moderation and candor to consider and de- 
cide on the means most proper to extricate them from the diffi- 
culties which threaten them. 

Besides it is well knowti that acknowledgments, explanations, 
and compensations are often accepted as satisfactory from a strong 
united nation, which would be rejected as unsatisfactory if offer-' 
ed by a state or confederation of little consideration or power. 

la the year 1685, the state of Genoa having offended Louis 
XlVth, endeavored to appease him. He demanded that they 
should., send their doge^ or chief magistrate, accompanied by four 
of their senators, lo France, to ask his pardon and receive his 
terms. They were obliged to submit to it for the sake of peace. 
Would he on any occasion either have demanded or have receiv- 
ed the like humiliation from Spain, or Britain or any other pow- 
erful nation ? PUBLICS, 



BY JOHN JAY. 
THE SAME SUBJECT CONTINUED. 



My last paper assigned several reasons, why the safety of the 
people would be best secured by union against the danger it may 
be exposed to hY jiist causes of war given to other nations ; and 
those reasons show, that such causes would not only be more 
rarely given, but would also be more easily accommodated by a 
national government, than either by the state governments, or the 
proposed confederacies. 

But the safety of the people of America against dangers from 
foreign force, depends not only on their forbearing to give just 
causes of war to other nations, but also on their placing and con- 
tinuing themselves in such a situation as not to invite hostility 
or insult ; for it need not be observed, that there are pretended 
as well as just causes of war. 

It is too true, however disgraceful it may be to human nature, 
that nations in general will make war whenever they have a pros- 
pect of getting any thing by it ; nay, that absolute nionarchs will 
often make war when their nations are to get nothing by it, but for 
purposes and objects merely personal, such as a thirst for military 
glory, revenge for personal affronts, ambition, or private compacts 
to aggrandize or support their particular famihes, or partisans. 
These, and a variety of motives, which affect only the mind of the 

3 



18 THE FEDERALIST. 

sovereign, often lead him to engage in wars not sanctioned by 
justice, or the voice and interests of his people. But independent 
of these inducements to war, which are most prevalent in ab- 
solute monarchies, but which well deserve our attention, there 
are others which affect nations as often as kings ; and some of 
them will on examination be found to grow out of our relative 
situation and circumstances. ' 

With France and with Britain, we are rivals in the fisheries, 
and can supply their markets cheaper than they can themselves, 
notwithstanding any efforts to prevent it by bounties on their 
own, or duties on foreign fish. ^■ 

With them and with most other European nations we are rivals 
in navigation and the carrying trade ; and we shall deceive our- 
selves, if we suppose that any of them will rejoice to see these 
flourish in our hands: for as our carrying trade cannot increase, 
without in some degree diminishing theirs, it is more their interest, 
and will be more their policy, to restrain, than to promote it. 

In the trade to China and India, we interfere with more than 
one nation, inasmuch as it enables us to partake in advantages 
which they had in a manner monopolized, and as we thereby supply 
ourselves with commodities which we used to purchase from them. 

The extension of our own commerce in our own vessels, can- 
not give pleasure to any nations who possess territories on or 
near this continent, because the cheapness and excellence of our 
productions, added to the circumstances of vicinity, aiKJ the enter- 
prise and address of our merchants and navigators, will give us a 
greater share in the advantages which those territories afford, than 
consists with the wishes or policy of their respective sovereigns. 

Spain thinks it convenient to shut the Mississippi against us on 
the one side, and Britain excludes us from the Saint Lawrence 
on the other ; nor will either of them permit the other waters, 
which are between them and us, to become the means of mutual 
intercourse and traffic. 

From t-hese and like considerations, which might, if consistent 
with prudence, be more amplified and detailed, it is easy to see 
that jealousies and uneasinesses may gradually slide into the 
minds and cabinets of other nations ; and that we are not to ex- 
pect they should regard our advancement in union, in power and 
consequence by land and by sea, with an eye of indifference and 
composure. 

The people of America are aware, that inducements to war 
may arise out of these circumstances, as well as from others not 
so obvious at present ; and that whenever such inducements may 
find fit lime and opportunity for operation, pretences to color and 
justify them' will not be wanting. Wisely therefore do they con- 
sider union and a good national government as necessary to put 
and keep them in such a situation, as, instead of inviting war. 



THE FEDERALIST. 19 

will tend to repress and discourage it. That situation consists 
in the best possible state of defence, and necessarily depends on 
the goi'-ernment, the arms and the resources of the country. 

As the safety of the whole is the interest of the whole, and 
cannot be provided for without government, either one or more 
or many, let us inquire whether one good government is not, 
relative to the object in question, more competent than any other 
given number whatever. 

One government can collect and avail itself of the talents and 
experience of the ablest men, in whatever part of the union they 
may be found. It can move on uniform principles of policy. 
It can harmonize, assimilate, and protect the several parts and 
members, and extend the benefit of its foresight and precautions 
to e^ch. In the formation of treaties it will regard the interest 
of the whole, aiid the particular interests of the parts as connect- 
ed with tliat of the whole. It cau apply the ^j'esources and pow- 
er of the whole to the defence of any particular part, and that 
more easily and expeditiously than state governments, or separate 
confederacies can possibly do, for want of concert and unity of 
system. It can place the militia under one plan*of discipline, 
and by putting their officers in a proper line of subordination to 
the chief magistrate, will in a manner consolidate them into one 
corps, and thereby render them more efficient than if divided 
into thirteen or into three or four distinct independent bodies. 

What wonld thB militia of Britain be, if the English militia 
obeyed the government of England, if the Scotch militia obeyed 
the government of Scotland, and if the Welch militia obeyed 
the government of Wales ? Suppose an invasion : would those 
three governments (if they agreed at a\\) be able with all their 
respective forces to operate against the enemy so effectually as 
the single government of Great Britain would? 

We have heard much of the fleets of Britain ; and if \W'. are 
wise, the time may come, when the fleets of America may en- 
gage attention. But if one national government had not so reg- 
ulated the navigation of Britaiti as to make it a nnrsery for sea- 
men — if one national government had not called forth all the 
national means and materials for forming fleets, their prowess 
and their thunder would never have been celebrated. Let Eng- 
land have its navigation and fleet — let Scotland have its navi- 
gation and fleet — let Wales have its navigation and fleet — let 
Ireland have its navigation and fleet — let those four of the con- 
stituent parts of the British empire be under four independent 
governments, and it is easy to perceive, how soon they would 
each dwindle into comparative insignificance. 

Apply these facts to our own tase. Leave America divided into 
thirteen, or if you please into three or four independent govern- 
ments, what armies could they raise and pay, what fleets could 



20 THE FEDERALIST. 

they ever hope to have ? If one was attacked, would the others 
fly to its succor, and spend their blood and money in its defence ? 
Wonld there be no danger of their being flattered into neutrality 
by specious promises, or seduced by a too great fondness for 
peace to decline hazarding their tranquillity and present safety for 
the sake of neighbors, of whom perhaps they have been jealous, 
and whose importance they are content to see diminished ? Al- 
though such conduct would not be wise, it would nevertheless 
be natural. The history of the states of Greece, and of other 
countries, abound with such instances ; and it is not improbable, 
that what has so often happened, would, under similar circum- 
stances, happen again. 

But admit that they might be willing to help the invaded state 
or confederacy. How, and when, and in what proportion shall 
aids of men and money be afforded ? Who shall command the 
allied armies, and :^om which of the associates shall he receive 
his orders ? Who shall settle the terms of peace, and in case of 
disputes what umpire shall decide between them, and compel ac- 
quiescence ? Various difficulties and inconveniences would be 
inseparable fr^m such a situation ; whereas one government; 
watching over the general and common interests, and combining 
and directing the powers and resources of the whole, would be 
free from all these embarrassments, and conduce far more to the 
safety of the people. „ 

But whatever may be our situation, whether firmly united un- 
der one national government, or split into a number of confedera- 
cies, certain it is, that foreign nations will know and view it ex- 
actly as it is, and they will act towards us accordingly. If they 
see that our national government is efficient and well administer- 
ed — our trade prudently regulated — our militia properly organ- 
ized and disciplined — our resources and finances discreetly man- 
aged — our credit re-established — our people free, contented, and 
united, they will be much more disposed to cultivate our friend- 
ship, than to provoke our resentment. If on the other hand, 
they find us either destitute of an effectual government, (each 
state doing right or wrong, as to its rulers may seem convenient,) 
or split into three or four independent and probably discordant 
republics or confederacies, one inclining to Britain, another to 
France, and a third to Spain, and perhaps played off against each 
other by the three, what a poor, pitiful figure will America make 
in their eyes ! How liable would she become not only to their 
contempt, but to their outrage ; and how soon would dear-bought 
experience proclaim that when a people or family so divide, it 
never fails to be against themselves ! PUBLIUS. 



THE FEDERALIST. 21 

BY JOHN JAY. 

THE SAME SUBJECT CONTINUED. 

duEEN Ann, in her letter of the 1st July, 1706, to the Scotch 
Parliament, makes some observations on the importance of the 
union then forming between England and Scotland, which merit 
our attention. I shall present the public with one or two extracts 
from it. " An entire and perfect union will be the solid founda- 
" tion of lasting peace : it will secure your religion, liberty, and 
" property, remove the animosities amongst yourselves, and the 
"jealousies and differences betwixt our two kingdoms. It must 
" increase your strength, riches, and trade ; c^nd by this union the 
" whole island, being joined in affection and free from all appre- 
" hensions of different interests, will be enabled to resist all its 
" enemies.''^ " We most earnestly recommend to you calmness and 
" unanimity in this great and weighty affair, that the union may be 
" brought to a happy conclusion ; being the only effectual way to 
" secure our present and future happiness, and disappoint the de- 
" signs of our and your enemies, who will doubtless, on this occa- 
*' sion, use their utmost endeavors to prevent or delay this iinionJ' 

It was remarked in the preceding paper, that weakness and di- 
vision at home would invite dangers from abroad, and that nothing 
would tgnd more to secure us from them than union, strength, 
and good government witmn ourselves. This subject is copious 
and caniyt easily be exhausted. 

The history of Great Britain is the one with which we are in 
general the best acquainted, and it gives us many useful lessons. 
We may profit by their experience, without paying the price 
which it cost them. Although it seems obvious to common sense, 
that the people of such an island should be but one nation, yet we 
find that they were for ages divided into three, and that those 
three were almost constantly embroiled in quarrels and wars with 
one another. Notwithstanding their true interest, with respect to 
the co!itinental nations, was really the same, yet by the arts and 
policy and practices of those nations, their mutual jealousies 
were perpetually kept enflamed, and for a long series of years 
they were far more inconvenient and troublesome, than they 
were useful and assisting to each other. 

Should the people of America divide themselves into three 
or four nations, would not the same thing happen ? Would not 
similar jealousies arise, and be in like manner cherished ? Instead 
of their being "joined in affection and free from all apprehension 
" of different interests," envy and jealousy would soon extinguish 
confidence and affection, and the partial interests of each confed- 
eracy instead of the general interests of all America, would be the 



22 THE FEDERALIST. 

only objects of their policy and pursuits. Hence, like most other 
bordering nations, they would always be either involved in dis- 
putes and vvar, or live in the constant apprehension of them. 

The most sanguine advocates for three or four confederacies, 
cannot reasonably suppose, that they would long remain exactly 
on an equal footing in point of strength, even if it was possible 
to form them so at first : but admitting that to be practicable, yet 
what human contrivance can secure the continuance of such 
equality? Independent of those local circumstances, which tend 
to beget and increase power in one part, and to impede its progress 
in another, we must advert to the effects of that superior policy 
and good management which would probably distinguish the 
government of one ahove the rest, and by which their relative 
equality in strength and consideration would be destroyed. For 
it cannot be presumed that the same degree of sound policy, 
prudence, and foresight would uniformly be observed by each of 
these confederacies, for a long succession of years. 

Whenever, and from whatever causes, it might happen, and hap- 
pen it would, that any one of these nations or confederacies, should 
rise on the scale of political importance much above the degree 
of her neighbors, that moment would those neighbors behold her 
with envy and with fear. ,Both those passions would lead them 
to countenance, if not to promote, whatever might promise to di- 
minish her importance: and would also restrain them from mea- 
sures calculated to advance, or even to secure her prosperity. 
Much time would not be necessary to ftiable her to discern these 
unfriendly dispositions. She would soon begin, not only to lose 
confidence in her neighbors, but also to feel a disposition equally 
unfavorable to them. Distrust naturally creates distrust, and by 
nothing is good- will and kind conduct more speedily changed, 
than by invidious jealousies and uncandid imputations, whether 
expressed or implied. 

The north is generally the region of strength, and many local 
circumstances render it probable, that the most northern of the pro- 
posed confederacies would at a period not very far distant, be un- 
questionably more formidable than any of the others. No sooner 
would this become evident, than the Northern Hive would excite 
the same ideas and sensations in the more southern parts of Amer- 
ica, which it formerly did in the southern parts of Europe : nor 
does it appear to be a rash conjecture, that its young swarms 
might often be tempted to gather honey in the more blooming 
fields and milder air of their luxurious and more delicate neighbors. 

They, who well consider the history of similar divisions and con- 
federacies, will find abundant reasons to apprehend, that those in 
contemplation would in no other sense be neighbors, than as they 
would be borderers ; that they would neither love, nor trust one 
another, but on the contrary would be a prey to discord, jealousy, 



THE FEDERALIST.. • 23 

and mutual injuries; in short, that they would place us exactly 
iri th<^ situation in wLiich some nations doubtless wish to see uSj 
in which we shall be formidable only to each other. 

From these considerations it appears, that those persons are 
greatly mistaken, who suppose that alliances offensive and defen- 
sive might be formed between these confederacies, which would 
produce that combination and imion of wills, of arms, and of re- 
sources, which would be necessary to put and keep them in a 
formidable state of defence against foreign enemies. 

When did the independent states, into which Britain and Spain 
were formerly divided, combine in such a.lliances, or unite their 
forces against a foreign enemy? The proposed confederacies 
will be district nations. Each of them would have to regulate 
its commerce with foreigners by distinct treaties ; and as their 
productions and commodities are different, and proper for differ- 
ent markets, so would those treaties be essentially different. Dif- 
ferent commercial concerns must create different interests, and of 
course different degrees of political attachment to, and connexion 
with, different foreign nations. Hence, it might, and probably 
would happen, that the foreign nation, with whom the southern 
confederacy might be at war, would be the one, with whom the 
northern confederacy would be the most desirous of preserving 
peace and friendship. An alliance so "contrary to their immediate 
interest would not therefore be easy to form, nor if formed, 
would it be observed and fulfilled with perfect good faith. 

Nay, it is far more probable, that in America, as in Europe, 
neighboring nations, acting under the impulse of opposite inter- 
ests, and unfriendly passions, would frequently be. found taking 
different sides. Considering our distance from Europe, it would 
be more natural for these confederacies to apprehend danger from 
one another, than from distant nations, and therefore that each of 
them should be more desirous to guard against the others, by the 
aid of' foreign alliances, than to guard against foreign dangers by 
alliances betwReu themselves. And here, let us not forget, how 
much easier it is to receive foreign fleets into our ports, and for- 
eign armies into our country, than it is to persuade or compel 
them to depart. How many conquests did the Romans and oth- 
ers make in the character of allies, and what innovations did they 
under the same character introduce into the governments of those 
whom they pretended to protect ! 

Let candid' men judge, then, whether the division of America 
into any given number of independent sovereignties, would tend 
to secure us against the hostilities and improper interference of 
foreign nations. ^ PUBLIUS. 



24 THE FEDERALIST. 



BY ALEXANDER HAMILTON. 
CONCERNING DANGERS EROM WAR BETWEEN THE STATES. 

The three last numbers of this work have been dedicated to an 
enumeration of the dangers to which we shall be exposed, in a 
state of disunion, from the arms and arts of foreign nations. I 
shall now proceed to delineate dangers of a different, and per- 
haps, still more alarming kind ; those which will in all probabili- 
ty flow from dissensions between the states themselves, and from 
domestic factions and convulsions. These have been already in 
some instances slightly anticipated ; but they deserve a more par- 
ticular and more full investigation. 

If these states should either be wholly disunited, or only unit- 
ed in partial confederacies, a man must be far gone in Utopian 
speculations, who can seriously doubt that the subdivisions into 
which they might be thrown would have frequent and violent 
contests with each other. To presume a want of motives for 
such contests, as an argument against their existence, would be 
to forget that men are ambitious, vindictive and rapacious. To 
look for a continuation of harmony between a number of inde- 
pendent, unconnected sovereignties, situated in the same neigh- 
borhood, would be to disregard the uniform course of human 
events, and to set at defiance the accumulated experience of ages. 

The causes of hostility amoi;g nations are innumerable. There 
are some which have a general and almost constant operation upon 
the collective'bodies of society. Of this description are the love 
of power, or the desire of preeminence and dominion — the jeal- 
ousy of power, or the desire of equality and safety. There are 
others which have a more circumscribed, though an equally ope- 
rative influence within their spheres ; such are the rivalshjps and 
competitions of commerce between commercial nations. And 
there are others, not less numerous than, either of the former, 
which- take their origin entirely in private passions ; in the attach- 
ments, enmities, interests, hopes, and fears of leading individuals 
in the communities of which they are members. Men of this class, 
whether the favorites of a king or of a people, have in too many 
instances abused the confidence they possessed ; and assuming the 
pretext of some public motive, have not scrupled to sacrifice the 
national tranquillity to personal advantage, or personal gratification. 

The celebrated Pericles, in compliance with the resentment of 
a prostitute,* at the expense of much of the blood and treasure of 
his countrymen, attacked, vanquished, and destroyed the city of 
the Satn?iians. The same man, stimulated by private pique 

* AspAsiA, vide Pj.utaech'8 life of Pericles. 



THE FEDERALIST. 35 

against the Magarensians, another nation of Greece, or to avoid a 
prosecution with which he was threatened as an accomplice in a 
supposed theft of the statuary Phidias, or to get rid of the accu- 
sations prepared to be brought against him for dissipating the 
funds of the state in the purchase of popularity, or from a com- 
bination of all these causes, was the primitive author of that 
famous and fatal war, distinguished in the Grecian annals by the 
name of the Peloponnesian war ; which after various vicissi- 
tudes, intermissions and renewals, terminated in the ruin of the 
Athenian commonwealth. 

The ambitious cardinal, who was prime minister to Henry 
VHIth, permitting his vanity to aspire to the triple crown, enter- 
tained hopes of succeeding in the acquisition of that splendid 
prize by the influence of the emperor Charles Vth. To secure 
the favor and interest of this enterprising and powerful monarch, 
he precipitated England into a war with France, contrary to the 
plainest dictates of policy, and at the hazard of the safety and 
independence, as well of the kingdom over which he presided by 
his counsels, as of Europe in general. For if there ever was a 
sovereign who bid fair to realize the project of universal mon- 
archy, it was the emperor Charles Vth, of whose intrigues Wol- 
sey was at once the instrument and the dupe. 

The influence which the bigotry of one female,* the petulance 
of another,! and the cabals of a third.J had in the cotemporary 
policy, ferments and pacifications, of a considerable part of Eu- 
rope, are topics that have been too often descanted upon not to 
be generally known. 

To multiply examples of the agency of personal considerations 
in the production of great national events, either foreign or do- 
mestic, according to their direction, would be an unnecessary 
waste of time. Those who have but a superficial acquaintance 
with the sources from which they are to be drawn, Vv^ll them- 
selves recollect a variety of instances ; and those who have a tol- 
erable knowledge of human nature, will not stand in need of 
such lights, to form their opinion either of the reality or extenlof 
that agency. Perhaps, however, a reference, tending to illustrate 
the general principle, may with propriety be made to a case 
which has lately happened among ourselves. If Shays had not 
been a desperate debtor, it is much to be doubted whether Massa- 
chusetts would have been plunged into a civil war. 

But notwithstanding theconcurringtestimony of experience, in 
this particular, there are still to be found visionary or designing 
men, who stand ready to advocate the paradox of perpetual peace 
between the states, though dismembered and alienated from each 

* Madame de Maintenon. t Dutchess of Marlborough, 

t Madame de Pompadoure. 



26 THE FEDERALIST. 

other — the genius of republics, say they, is pacific ; the spirit 
of commerce has a tendency to soften the manners of men, and 
to extinguish those inflammable humors which have so often 
kindled into wars. Commercial republics, like ours, will never 
be disposed to waste themselves in ruinous contentions with each 
other. They will be governed by mutual interest, and will cul- 
tivate a spirit of mutual amity and concord. 

We may ask these projectors in politics, whether it is not the 
true interest of all nations to cultivate the same benevolent and 
philosophic spirit ? If this be their true interest, have they in 
fact pursued it ? Has it not, on the contrary, invariably been 
found that momentary passions, and immediate interests, have a 
more active and imperious control over human conduct than gen- 
eral or remote considerations of policy, utility or justice? Have 
republics in practice been less addicted to war than monarchies ? 
Are not the former administered by men as well as the latter? 
Are there not aversions, predilections, rivalships and desires of un- 
just acquisition, that affect nations as well as kings ? Are not pop- 
ular assemblies frequently subject to the impulses of rage, resent- 
ment, jealousy, avarice, and of other irregular and violent propensi- 
ties? Is it not well known, that their determinations are often gov- 
erned by a few individuals in whom they place confidence, and 
that they are of course liable to be tinctured by the passions and 
views of those individuals ? Has commerce hitherto done any 
thing more than changed the objects of war ? Is not the love of 
wealth as domineering and enterprising a passion as that of power 
or glory ? Have there not been as many wars founded upon 
commercial motives, since that has become the prevailing system 
of nations, as were before occasioned by the cupidity of territory 
or dominion ? Has not the spirit of commerce, in many instances, 
administered new incentives to the appetite, both for the one and 
for the other ? Let experience, the least fallible guide of human 
opinions, be appealed to for an answer to these inquiries. 

Sparta, Athens, Rome and Carthage, were all republics; two 
of them, Athens and Carthage, of the commercial kind. Yet 
were they as often engaged in wars offensive and defensive, as 
the neighboring monarchies of the same times. Sparta was 
little better than a well regulated camp ; and Rome was never 
sated of carnage and conquest. 

Carthage, though a commercial republic, was the aggressor in 
the very war that ended in her destruction. Hannibal had car- 
ried her arms into the heart of Italy, and even to the gates of 
Rome, before Scipio, in turn, gave him an overthrow in the ter- 
ritories of Carthage, and made a conquest of the commonwealth. 

Venice, in latter times, figured more than once in wars of am- 
bition ; till becoming an object of terror to the other Italian states, 
Pope Julius the second found means to accomplish that formidable 



THE FEDERALIST. 27 

league * which gave a deadly blow to the power and pride of 
that haughty republic. 

The provinces of Holland, till they were overwhelmed in debts 
and taxes, took a leading and conspicuous part in the wars of 
Europe, They had furious contests with England for the do- 
minion of the sea ; and were among the most persevering and 
most implacable of the opponents of Louis XIV. 

In the government of Britain the representatives of the people 
compose one branch of the national legislature. Commerce has 
been for ages the predominant pursuit of that country. Yet few 
nations have been more frequently engaged in war ; and the wars 
in which th&,t kingdom has been engaged, have in numerous instan- 
ces proceeded from the people. There have been, if I may so ex- 
press it, almost as many popular as royal wars. The cries of the 
nation and the importunities of their representatives have, upon 
various occasions, dragged their monarchs into war, or continued 
them in it, contrary to their inclinations, and sometimes contrary to 
the real interests of the state. In that memorable struggle for 
superiority, between the rival houses of Austria and Bourbon, 
which so long kept Europe in a flame, it is well known that the 
antipathies of the English against the French, seconding the am- 
bition, or rather the avarice of a favorite leader,f protracted the 
war beyond the limits marked out by sound policy, and for a 
considerable time in opposition to the views of the court. 

The wars of these two last mentioned nations have in a great 
measure grown out of commercial considerations : the desire of 
supplanting, and the fear of being supplanted, either in particular 
branches of traffic, or in the general advantages of trade and nav- 
igation ; and sometimes even the more culpable desire of sharing 
in the commerce of other nations, without their consent. 

The last war but two between Britain and Spain, sprang from 
the attempts of the English merchants, to prosecute an illicit trade 
with the Spaliish main. These unjustifiable practices, on their 
part, produced severities on the part of the Spaniards, towards the 
subjects of Great Britain, which were not more justifiable ; because 
they exceeded the bounds of a just retaliation, and were chargeable 
with inhumanity and cruelty. Many of the English who were 
taken on the Spanish coasts, were sent to dig in the mines of 
Potosi ; and by the usual progress of a spirit of resentment, the 
innocent were after a while confounded with the guilty in indis- 
criminate punishment. The complaints of the merchants kindled 
a violent flame throughout the nation, which soon after broke 
out in the house of commons, and was communicated from that 
body to the ministry. Letters of reprisal were granted and a 

* The League of Cambray, comprehending the emperor, the king of France, 
th« king of Arragon, and most of the Italian princes and States. 

t The duke of Marlborough. 



28 THE FEDERALIST. 

war ensued, which, in its consequences, overthrew all the alliances 
that but twenty years before had been formed, with sanguine 
expectations of the most beneficial fruits. 

From this summary of what has taken place in other countries, 
whose situations have borne the nearest resemblance to our own, 
what reason can we have to confide in those reveries, which would 
seduce us into the expectation of peace and cordiality between 
the members of the present confederacy, in a state of separation ? 
Have we not already seen enough of the fallacy and extravagance 
of those idle theories which have amused us with promises of an 
exemption from the imperfections, the weaknesses, and the evils 
incident to society in every shape ? Is it not time to awake 
from the deceitful drearn of a golden age, and to adopt as a prac- 
tical maxim for the direction of our political conduct, that we, as 
well as the other inhabitants of the globe, are yet remote from 
the happy empire of perfect wisdom and perfect virtue ? 

Let the point of extreme depression to which our national dig- 
nity and credit have sunk ; let the inconveniences felt every- 
where from a lax and ill-administration of government ; let the 
revolt of a part of the state of North Carolina ; the late menac- 
ing disturbances in Pennsylvania, and the actual insurrections and 
rebellions in Massachusetts, declare! 

So far is the general sense of mankind from corresponding with 
the tenets of those, who endeavor to lull asleep our apprehensions 
of discord and hostility between the states, in the event of dis- 
union, that it has from long observation of the progress of society 
become a sort of axiom in politics, that vicinity or nearness of sit- 
uation, constitutes nations natural enemies. An intelligent writer 
expresses himself on this subject to'this effect: "Neighboring 
"nations (says he) are naturally enemies of each other, unless 
" their common weakness forces them to league in a confedera- 
" TivE REPUBLIC, and their constitution prevents the diff'erences 
" that neighborhood occasions, extinguishing that secret jealousy, 
" which disposes all states to aggrandize themselves at the expense 
" of their neighbors."* This passage, at the same time, points 
out the EVIL, and suggests the remedy. PUBLIUS. 



3SrXJ3N/!lBEPl -^XX. 



BY ALEXANDER HAMILTON. 
THE SUBJECT CONTINUED AND PARTICULAR CAUSES ENUMERATED. 

It is sometimes asked, with an air of seeming triumph, what & 
inducements the states could have, if disunited, to make war upon 

* Vide Principles des Negotiations par I'Abbe de Mably. 



THE FEDERALIST. 29 

each other ? It would be a full answer to this question to say — 
precisely the same inducements which have, at different times, 
deluged in blood all the nations in the world. But unfortunately 
for us, the question admits of a more particular answer. There 
are causes of differences within our immediate contemplation, of 
the tendency of which, even under the restraints of a federal 
constitution, we have had sufficient experience to enable us to 
form a judgment of what might be expected, if those restraints 
were removed. 

Territorial disputes have at all times been found one of the most 
fertile sources of hostility among nations. Perhaps the greatest 
portion of the wars that have desolated the earth have sprung from 
this origin. This cause would exist among us in full force. We 
have a vast tract of unsettled territory within the boundaries of the 
United States. There still are discordant and undecided claims 
between several of them ; and the dissolution of the union would 
lay a foundation for similar claims between them all. It is well 
known, that they have heretofore had serious and animated discus- 
sions concerning the right to the lands \yhich were ungranted at 
the time of the revolution, and which usually went under the name 
of crown lands. The states, within the limits of whose colonial 
governments they were comprised, have claimed them as their pro- 
perty; the others have contended, that the rights of the crown in 
this article devolved upon the union ; especially as to all that part 
of the western territory which, either by actual possession, or 
through the submission of the Indian proprietors, was subject to 
the jurisdiction of the king of Great Britain, till it was relinquish- 
ed by the treaty of peace. This, it has been said, was at all events 
an acquisition to the confederacy by compact with a foreign power. 
It has been the prudent policy of congress to appease this contro- 
versy, by prevailing upon the states to make cessions to the United 
States for the benefit of the whole. This has been so far accom- 
plished, as under a continuation of the union, to afford a decided 
prospect of an amicable termination of the dispute. A dismem- 
berment of the confederacy, however, would revive this dispute, 
and would create others on the same subject. At present, a large 
part of the vacant western territory is, by cession at least, if not 
by any anterior right, the common property of the union. If that 
were at an end, the states which have made cessions, on a princi- 
ple of federal compromise, would be apt, when the motive of the 
grant had ceased, to reclaim the lands as a reversion. The other 
states would no doubt insist on a proportion, by right of represent- 
ation. Their argument would be, that a grant once made, could 
not be revoked ; and that the justice of their participating in terri- 
tory acquired or secured, by the joint efforts of the confederacy, 
remained undiminished. If, contrary to probability, it should be 
admitted by all the states, that each had a right to a share of this 



30 THE FEDERALIST. 

common stock, there would still be a difficulty to be surmounted, 
as to a proper rule of apportionment. Different principles would 
be set up by different states for this purpose ; and as they would 
affect the opposite interest of the parties ; they might not easily 
be susceptible of a pacific adjustment. 

In the wide field of western territory, therefore, we perceive an 
ample theatre for hostile pretensions, without any umpire or com- 
mon judge to interpose between the contending parties. To rea- 
son from the past to the future, we shall have good ground to 
apprehend, that the sword would sometimes be appealed to as the 
arbiter of their differences. The circumstances of the dispute be- 
tween Connecticut and Pennsylvania, respecting the lands at 
Wyoming, admonish us not to be sanguine in expecting an easy 
accommodation of such differences. The articles of confederation 
obliged the parties to submit the matter to the decision of a federal 
court. The submission was made, and the court decided in favor 
of Pennsylvania. But Connecticut gave strong indications of 
dissatisfaction with that determination ; nor did she appear to be 
entirely resigned to it, till by negotiation and management some- 
thing like an equivalent was found for the loss she supposed her- 
self to have sustained. Nothing here said is intended to convey 
the slightest censure on the conduct of that state. She no doubt 
sincerely believed herself to have been injured by the decision; 
and states, like individuals, acquiesce with great reluctance in de- 
terminations to their disadvantage. 

Those who had an opportunity of seeing the inside of the trans- 
actions, which attended the progress of the controversy between 
this state and the district of Vermont, can vouch the opposition 
we experienced, as well from states not interested, as from those 
which were interested in the claim ; and can attest the danger to 
which the peace of the confederacy might have been exposed, 
had this state attempted to assert its rights by force. Two mo- 
tives preponderated in that opposition; one, a jealousy entertain- 
ed of our future power ; another, the interest of certain individu- 
als of influence in the neighboring states, who had obtained grants 
of lands under the actual government of that district. Even the 
states which brought forward claims, in contradiction to ours, 
seemed more solicitous to dismember this state, than to establish 
their own pretensions. These were New Hampshire, Massachu- 
setts and Connecticut. New .Jersey and Rhode Island, upon all 
occasions, discovered a warm zeal for the independence of Ver- 
mont ; and Maryland, until alarmed by the appearance of a con- 
nection between Canada and that place, entered deeply into the 
same views. These being small states, saw with an unfriendly 
eye the perspective of our growing greatness. In a review of 
these transactions, we may trace some of the causes which would 



THE FEDERALIST. . 31 

be likely to embroil the states with each, other, if it should be 
their unpropitious destiny to become disunited. 

The competitions of commerce would be another fruitful source 
of contention. The states less favorably circumstanced, would 
be desirous of escaping from the disadvantages of local situation, 
and of sharing in the advantages of their more fortunate neigh- 
bors. Each state, or separate confederacy, would pursue a system 
of commercial polity peculiar to itself. This would occasion dis- 
tinctions, preferences, and exclusions, which would beget discon- 
tent. The habits of intercourse, on the basis of equal privileges, 
to which we have been accustomed from the earliest settlement of 
the country, would give a keener edge to those causes of discon- 
tent, than they v/ould naturally have, independent of this circum- 
stance. We should he ready to denominate injuries those things 
which were in reality the justifiable acts of independent sove- 
reignties corisulting a distinct interest. The spirit of enterpiise 
which characterizes the commercial part of America, has left no oc- 
casion of displaying itself unimproved. It is not at all probable that 
this unbridled spirit would pay much respect to those regulatioiis of 
trade, by which particular states might endeavor to secure exclu- 
sive benefits to their own citizens. The infractions of these regu- 
lations on one side, the efforts to prevent and repel -them on the 
other, would naturally lead to outrages, and these to reprisals and 
wars. 

The opportunities which some states would have of rendering 
others tributary to them, by commercial regulations, would be im- 
patiently submitted to by the tributary states. The relative situa- 
tion of New York, Connecticut and New Jersey, would afford an 
example of this kind. New York, from the necessities of rev- 
enue, must lay duties on her importations. A great part of these 
duties must be paid by the inhabitants of the two other states in 
the capacity of consumers of what we import. New York would 
neither be willing, nor able to forego this advantage. Her citizens 
would not consent that a duty paid by them should be remitt^pd 
■in favor of the citizens of her neighbors; nor would it be prac- 
ticable, if there were not this impediment in the way, to distin- 
guish the customers in our own markets. 

Would Connecticut and New Jersey long submit to be taxed 
by New York for her exclusive benefit ? Should we be long 
permitted to remain in the quiet and undisturbed enjoyment of a 
metropolis, from the possession of which we derived an advan- 
tage so odious to our neighbors, and, in their opinion, so oppres- 
sive ? Should we be able to preserve it against the incumbent 
weight of Connecticut on the one side, and the co-operating 
pressure of New Jersey on the other ? These are questions that 
temerity alone will answer in the affirmative. 

The public debt of the union would be a further cause of colli- 



32 . THE FEDERALIST. 

sio!i between the separate states or confederacies. The apportion- 
ment, in the first instance, and the progressive extinguishment, af- 
terwards, would be alike productive of ill-humor and animosity. 
How would it be possible to agree upon a rule of apportionment, sat- 
isfactory to all ? There is scarcely any that can be proposed which 
•is entirely free from real objections. These, as usual, would be 
exaggerated by the adverse interest of the parties. There are even 
dissimilar views among the states, as to the general principle of dis- 
charging the public debt. Some of them, either less impressed 
with the importance of national credit, or because their citizens 
have little, if any, immediate interest in the question, feel an in- 
difference, if not a repugnance to the payment of the domestic 
debt, at any rate. These would be inclined to magnify the diffi- 
culties of a distribution. Others of them, a numerous body of 
whose citizens are creditors of the public, beyond the proportion 
of the state in the total amount of the national debt, would be 
strenuous for some equitable and effectual provision. The pro- 
crastinations of the former, would excite the resentments of the 
latter. The settlement of a rule would in the meantime be 
postponed, by real differences of opinion, and affected delays. 
The citizens of the states interested would clamor ; foreign pow- 
ers would urge for the satisfaction of their just demands ; and 
the peace of the states would be exposed to the double contin- 
gency of external invasion, and internal contention. 

But suppose the difficulties of agreeing upon a rule surmounted, 
and the apportionment made. Still there is great room to suppose, 
that the rule agreed upon would, in the experiment, be found to 
bear harder upon some states than upon others. Those which were 
sufferers by it, would naturally seek for a mitigation of the burthen. 
The others would as naturally be disinclined to a revision, which 
was likely to end in an increase of their own incumbrances. Their 
refusal would afford to the complaining states a pretext for with- 
holding their contributions, too plausible not to be embraced with 
aj^idity ; and the non-compliance of these states with their engage- 
ments would be a ground of bitter dissension and altercation. If 
even the rule adopted should in practice justify the equality of its 
principle, still delinquencies in payment, on the part of some of 
the states, would result from a diversity of other causes — the real 
deficiency of resources ; the mismanagement of their finances ; 
accidental disorders in the administration of the government ; and 
in addition to the rest, the reluctance with which men commonly 
part with money for purposes, that have outlived the exigencies 
which produced them, and interfere with the supply of immediate 
wants. Delinquencies from whatever causes would be productive 
of complaints, recriminations and quarrels. There is perhaps 
nothing more hkely to disturb the tranquillity of nations, than their 
being bound to mutual contributions for any common object which 



THE FEDERALIST. 33 

does not yield an equal and coincident benefit. For it is an ob- 
servation as true, as it is trite, that there is nothing men differ so 
readily about, as the payment of money. 

Laws in violation of private contracts, as they amount to aggres- 
sions on the rights of those states, whose citizens are injured by 
them, may be considered as another probable source of hostility. 
We are not authorized to expect, that a more liberal, or more 
equitable spirit would preside over the legislations of the individ- 
ual states hereafter, if unrestrained by any additional checks, than 
we have heretofore seen, in too many instances, disgracing their 
several codes. We have observed the disposition to retaliation 
excited in Connecticut, in consequence of the enormities perpe- 
trated by the legislature of Rhode Island ; and we may reason- 
ably infer, that in similar cases, under other circumstances, a 
war, not of parchment, but of the sword, would chastise such 
atrocious breaches o/ moral obligation and social justice. 

The probability of incompatible alliances between the different 
states, or confederacies, and different foreign nations, and the 
effects of this situation upon the peace of the whole, have been 
sufficiently unfolded in some preceding papers. From the view 
they have exhibited of this part of the subject, this conclusion is 
to be drawn, that America, if not connected at all, or only by the 
feeble tie of a simple league, offensive and defensive, would by 
the operation of such opposite and jarring alliances be gradually 
entangled in all the pernicious labyrinths of European politics 
and wars; and by the destructive contentions of the parts, into 
which she was divided, would be likely to become a prey to the 
artifices and machinations of powers equally the enemies of them 
all. Divide et impera must be the motto of every nation that 
either hates or fears us. PUBLIUS. 



BY ALEXANDER HAMILTON. 

fHE EFFECTS OP INTERNAL WAR IN PRODUCING STANDING ARMIES, 
AND OTHER INSTITUTIONS UNFRIENDLY TO LIBERTY. 

Assuming it therefore as an established truth, that, in case of 
disunion, the several states, or such combinations of them as 
might happen to be formed out of the wreck of the general 
confederacy, would be subject to those vicissitudes of peace and 
war, of friendship and enmity with each other, which have fallen 
to the lot of all neighboring nations not united under one 

5 



34 THE FEDERALIST. 

government, let us enter into a concise detail of some of the? 
consequences that would attend such a situation. 

War between the states, in the first periods of their separate ex- 
istence, would be accompanied with much greater distresses than 
it commonly is in th'ose countries where regular military establish- 
ments have long obtained. The disciplined armies always kept on 
foot on the continent of Europe, though they bear a malignant as- 
pect to liberty and economy, have, notwithstanding, been produc- 
tive of the signal advantage of rendering sudden conquests imprac- 
ticable, and of preventing that rapid desolation, which used to 
mark the progress of war prior to their introduction. The art of 
fortification has contributed to the same ends. The nations of 
Europe are encircled with chains of fortified places, which mutually 
obstruct invasion. Campaigns are wasted in reducing two or 
three frontier garrisons, to gain admittance into an enemy's country. 
Similar impediments occur at every step, to exhaust the strength 
and delay the progress of an invader. Formerly, an invading 
army would penetrate into the heart of a neighboring country, al- 
most as soon as intelligence of its approach could be received ; but 
now, a comparatively small force of disciplined troops, acting, on 
the defensive, with the aid of posts, is able to impede, and finally 
to frustrate, the enterprises of one much more considerable. The 
history of war in that quarter of the globe, is no longer a history 
of nations subdued, and empires overturned ; but of towns taken 
and retaken, of battles that decide nothing, of retreats more ben- 
eficial than victories, of much effort and little acquisition. 

In this country, the scene would be altogether reversed. The 
jealousy of military establishments, would postpone them as long 
as possible. The want of fortifications, leaving the frontiers of 
one state open to another, would facilitate inroads. The populous 
states would, with little difficulty, overrun their less populous 
neighbors. Conquests would be as easy to be made, as difficult to 
be retained. War, therefore, would be desultory and predatory. 
Plunder and devastation ever march in the train of irregulars. 
The calamities of individuals would make the principal figure in 
the even'ts, which would characterize our military exploits. 

This picture is not too highly wrought ; though I confess, it 
would not long remain a just one. Safety from external danger, 
is the most powerful director of national conduct. Even the ar- 
dent love of liberty will, after a time, give way to its dictates. 
The violent destruction of life and property incident to war: the 
continual effort and alarm attendant on a state of continual danger, 
will compel nations the most attached to liberty, to resort for re- 
pose and security to institutions which have a tendency to destroy 
their civil and political rights. To be more safe, they at length 
become willing to run the risk of being less free. 

The institutions chiefly alluded to are standing armies, and the 



THE FEDERALIST. 35 

correspondent appendages of military establishments. Standing 
armies, it is said, aire not provided against in the new constitution ; 
and it is thence inferred that they would exist under it.* This in- 
ference, from the very form of the proposition, is, at best, proble- 
matical and uncertain. But standing armies, it may be replied, 
must inevitably result from a dissolution of the confederacy. Fre- 
quent war, and constant apprehension, which require a state of as 
constant preparation, will infallibly produce them. The weaker 
states, or confederacies, would first have recourse to them, to put 
themselves upon an equality with their more potent neighbors. 
They would endeavor to supply the inferiority of population and 
resources by a more regular and effective system of defencei, by 
disciplined troops, and by fortifications. They would, at the same 
time, be obliged to strengthen the executive arm of government ; 
in doing which, their constitutions would acquire a progressive di- 
rection towards monarchy. It is of the nature of war to increase 
the executive, at the expense of the legislative authority. 

The expedients which have been mentioned would soon give the 
states, or confederacies, that made use of them, a superiority over 
their neighbors. Small states, or states of less natural strength, 
under vigorous governments, and with the assistance of disciplined 
armies, have often triumphed over large states, or states of greater 
natural strength, which have been destitute of these advantages. 
Neither the pride, nor the safety, of the more important states, or 
confederacies, would permit them long to submit to this mortifying 
and adventitious superiority. They would quickly resort to means 
similar to those by which it had been effected, to reinstate them- 
selves in their lost preeminence. Thus we should in a little time 
see established, in every part of this country, the same ejigines of 
despotism which nave been the scourge of the old world. This, 
at least, would be the natural course of things ; and our reasonings 
will be likely to be just, in proportion as they are accommodated 
to this standard. 

These are not vague inferences deduced from speculative de- 
fects in a constitution, the whole power of which is lodged in the 
hands of the people, or their representatives and delegates : they 
are solid conclusions, drawn from the natural and necessary pro- 
gress of human affairs. 

It may perhaps be asked, by way of objection, why did not 
standing armies spring up out of the contentions which so often 
distracted the ancient republics of Greece ? Different answers, 
equally satisfactory, may be given to this question. The industri- 
ous habits of the people of the present day, absorbed in the pur- 

* This objection will be fully examined in its proper place ; and it will be shown 
that the only rational precaution which could have been taken on this subject, has 
been taken ; and a much better one than is to be found in any constitution that 
has been heretofore framed in America, most of which contain no guard at all on 
this subject. 



36 THE FEDERALIST. 

suits of gain, and devoted to the improvements of agriculture and 
commerce, are incompatible with the condition: of a nation of sol- 
diers, which was the true condition of the people of those repub- 
lics. The means of revenue, which have been so greatly multi- 
plied by the increase of gold and silver, and of the arts of indus- 
try and of the science of jfinance, which is the offspring of mod- 
ern times, concurring with the habits of nations, have produced an 
entire revolution in the system of war, and have rendered disci- 
plined armies, distinct from the body of the citizens, the insepara- 
ble companion of frequent hostility. 

There is a wide difference also, between military establishments 
in a country which, by its situation, is seldom exposed to invasions, 
and ill one which is often subject to them, and always apprehensive 
of them. The rulers of the former can have no good pretext, if 
they are even so inclined, to keep on foot armies so numerous as 
must of necessity be maintained in the latter. These armies be- 
ing, in the first case, rarely, if at all, called into activity for inte- 
rior defence, the people are in no danger of being broken to mili- 
tary subordination. The laws are not accustomed to relaxations, 
in favor of military exigencies ; the civil state remains in full vigor, 
neither corrupted, nor confounded with the principles or propensi- 
ties of the other state. The smallness of the army forbids compe- 
tition with the natural strength of the community, and the citizens, 
not habituated to look up to the military power for protection, or 
to submit to its oppressions, neither love nor fear the soldiery: 
they view them with a spirit of jealous acquiescence in a neces- 
sary evil, and stand ready to resist a power which they suppose 
may be exerted to the prejudice of their rights. 

The army under such circumstances, though it may usefully aid 
the magistrate to suppress a small faction, or an occasional mob, or 
insurrection, will be utterly incompetent to the purpose of enforc- 
ing encroachments against the united efforts of the great body of 
the people. 

But in a country, where the perpetual menacings of danger 
oblige the government to be always prepared to repel it, her armies 
must be numerous enough for instant defence. The continual ne- 
cessity for his services enhances the importance of the soldier, and 
proportionably degrades the condition of the citizen. The milita- 
ry state becomes elevated above the civil. The inhabitants of ter- 
ritories often the theatre of war, are unavoidably subjected to fre- 
quent infringements on their rights, which serve to weaken their 
sense of those rights ; and by degrees, the people are brought to 
consider the soldiery not only as their protectors, but as their supe- 
riors. The transition from this disposition to that of considering 
them as masters, is neither remote nor difficult : but it is very diffi- 
cult to prevail upon a people under such impressions, to make a 



THE FEDERALIST. 37 

bold or effectual resistance, to usurpations supported by the mili- 
tary power. 

The kingdom of Great Britain falls within the first description. 
An insular situation, and a powerful marine, guarding it in a great 
measure against the possibility of foreign invasion, supersede the 
necessity of a numerous army within the kingdom. A sufficient 
force to make head against a sudden descent till the militia could 
have time to rally and embody, is all that has been deemed requi- 
site. No motive of national policy has demanded, nor would 
public opinion have tolerated, -a larger number of troops upon its 
domestic establishment. This peculiar felicity of situation has, 
in a great degree, contributed to preserve the liberty which that 
country to this day enjoys, in spite of the prevalent venality and 
corruption. If Britain had been situated on the continent, and 
had been compelled, as she \vould have been, by that situation, 
to make her military establishments at home coextensive with 
those of the other great powers of Europe, she, like them, would 
in all probability, at this day, be a victim to the absolute power 
of a single man. It is possible, though not easy, for the people 
of that island to be enslaved from other causes ; but it cannot be 
by the prowess of an army so inconsiderable as that which has 
been usually kept up within the kingdom. 

If we are wise enough to preserve the union, we may for ages 
enjoy an advantage similar to that of an insulated situation. Eu- 
rope is at a great distance from us. Her colonies in our vicinity 
will be likely to continue too much disproportioned in strength, to 
be able to give us any dangerous annoyance. Extensive military 
establishments cannot, in this position, be necessary to our security. 
But if we should be disunited, and the integral parts should either 
remain separated, or, which is most probable, should be thrown 
together into two or three confederacies, we should be, in a short 
course of time, in the predicament of the continental powers of 
Europe. Our liberties would be a prey to the means of defend- 
ing ourselves against the ambition and jealousy of each other. 

This is an idea not superficial nor futile, but solid and weighty. 
It deserves the most serious and mature consideration of every 
prudent and honest man, of whatever party : if such men will 
make a firm and solemn pause, and meditate dispassionately on its 
vast importance ; if they will contemplate it in all its attitudes, and 
trace it to all its consequences, they will not hesitate to part with 
trivial objections to a constitution, the rejection of which would in 
all probability put a final period to the union. The airy phantoms 
that now flit before the distempered imaginations of some of its 
adversaries, would then quickly give place to the more substantial 
prospects of dangers, real, certain and extremely formidable. 

PUBLIUS. 



38 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 

THE UTILITY OF THE UNION AS A SAFEGUARD AGAINST DOMESTIC 
FACTION AND INSURRECTION. 

A FIRM union will be of the utmost moment to the peace and 
liberty of the states, as a barrier against domestic faction and 
insurrection. 

It is impossible to read the history of the petty republics of 
Greece and Italy, without feeling sensations of horror and disgust 
at the distractions with which they were continually agitated, and 
at the rapid succession of revolutions, by which they were kept 
perpetually vibrating between the extremes of tyranny and anar- 
chy. If they exhibit occasional calms, these only serve as short- 
lived contrasts to the furious storms that are to succeed. If now 
and then intervals of felicity open themselves to view, we behold 
them with a mixture of regret, arising from the reflection, that the 
pleasing scenes before us are soon to be overwhelmed by the tem- 
pestuous waves of sedition and party rage. If momentary rays of 
glory break forth from the gloom while they dazzle us with a tran- 
sient and fleeting brilliancy, they at the same time admonish us to 
lament, that the vices of government should pervert the direction, 
and tarnish the lustre of those bright talents and exalted endow- 
ments, for which the favored soils that produced them have been 
so justly celebrated. 

From the disorders that disfigure the annals of those republics, 
the advocates of despotism have drawn arguments, not only against 
the forms of republican government, but against the very princi- 
ples of civil liberty. They have decried all free government, as in- 
consistent with the order of society, and have indulged themselves 
in malicious exultation over its friends and partisans. Happily for 
mankind, stupendous fabrics reared on the basis of liberty, which 
have flourished for ages, have in a few glorious instances refuted 
their gloomy sophisms. And, I trust, America will be the broad 
and solid foundation of other edifices not less magnificent, which 
will be equally permanent monuments of their error. 

But it is not to be denied, that the portraits they have sketched 
of republican government, were too just copies of the originals 
from which they were taken. If it had been found impracticable 
to have devised models of a more perfect structure, the enlighten- 
ed friends of liberty would have been obliged to abandon the cause 
of that species of government as indefensible. The science of 
politics, however, like most other sciences, has received great im- 
provement. The efficacy of various principles is now well under- 
stood, which were eith^ not known at all, or imperfectly known to 



THE FEDERALIST. 39 

the ancients. The regular distribution of power into distinct de- 
partments ; the introduction of legislative balances and checks ; 
the institution of courts composed of judges, holding their offices 
during good behavior ; the representation of the people in the 
legislature, by deputies of their own election ; these are either 
wholly new discoveries, or have made their principal progress 
towards perfection in modern times. They are means, and pow- 
erful means, by which the excellences of republican government 
may be retained, and its imperfections lessened or avoided. To 
this catalogue of circumstances, that tend to the melioration of pop- 
ular systems of civil government, I shall venture, however novel 
it may appear to some, to add one more, on a principle which has 
been made the foundation of an objection to the new constitution ; 
I mean the enlargement of the orbit within which such systems 
are to revolve, either in respect to the dimensions of a single state, 
or to the consolidation of several smaller states into one great 
confederacy. The latter is that which immediately concerns the 
object under consideration. It will, however, be of use to ex- 
amine the principle in its application to a single state which shall 
be attended to in another place. 

The utility of a confederacy, as well to suppress faction, and 
to guard the internal tranquillity of states, as to increase their ex- 
ternal force and security, is in reality not a new idea. It has 
been practised upon in different countries and ages, and has re- 
ceived the sanction of the most approved writers on the subject 
of politics. The opponents of the plan proposed, have, with 
great assiduity, cited and circulated the observations of Montes- 
quieu on the necessity of a contracted territory for a republican 
government. But they seem not to have been apprised of the 
sentiments of that great man expressed in another part of his 
work, nor to have adverted to the consequences of the principle 
to which they subscribe with such rdady acquiescence. 

When Montesquieu recommends a small extent for republics, 
the standards he had in view were of dimensions far short of the 
limits of almost every one of these states. Neither Virginia, Mas- 
sachusetts, Pennsylvania, New- York, North Carolina, nor Georgia, 
can by any means be compared with the models from which he 
reasoned, and to which the terms of his description apply. If we 
therefore receive his ideas on this point, as the criterion of truth, 
we shall be driven to the alternative, either of taking refuge at 
once in the arms of monarchy, or of splitting ourselves into an in- 
finity of little, jealous, clashing, tumultuous commonwealths, the 
wretched nurseries of unceasing discord, and the miserable objects 
of universal pity or contempt. Some of the writers, who have 
come forward on the other side of the question, seem to have been 
aware of the dilehima ; and have even been bold enough to hint 
at the division of the larger states, as a desirable thing. Such an 



40 THE FEDERALIST. 

t 
infatuated policy, such a desperate expedient, might by the multi- 
plication of petty offices, answer the views of men, who possess 
not qualifications to extend their influence beyond the narrow 
circles of personal intrigue ; but it could never promote the great- 
ness or happiness of the people of America. 

Referring the examination of the principle itself to another 
place, as has been already mentioned, it will be sufficient to re- 
mark here, that in the sense of the author who has been most 
emphatically quoted upon the occasion, it would only dictate a 
reduction of the size of the more considerable members of the 
union ; but would not militate against their being all comprehend- 
ed in one confederate government. And this is the true question, 
in the discussion of which we are at present interested. 

So far are the suggestions of Montesquieu from standing in op- 
position to a general union of the states, that he explicitly treats 
of a CONFEDERATE REPUBLIC as the expedicUt for extending the 
sphere of popular government, and reconciling the advantages of 
monarchy with those of republicanism. 

" It is very probable," says he,* " that mankind would have 
" been obliged, at length, to live constantly under the govern- 
" ment of a single person, had they not contrived a kind of 
" constitution, that has all the internal advantages of a republicaUj 
*' together with the external force of a monarchical government. 
" I mean a confederate republic 

" This form of government is a convention by which several 
" smaller states agree to become members of a larger one, which 
" they intend to form. It is a kind of assemblage of societies, 
" that constitute a new one, capable of increasing by means of 
^' new associations, till they arrive to such a degree of power as 
" to be able to provide for the security of the united body. 

" A republic of this kind, able to withstand an external force, 
"may support itself without any internal corruption. The form 
" of this society prevents all manner of inconveniences. 

" If a single member should attempt to usurp the supreme au- 
" thority, he could not be supposed to have an equal authority and 
" credit in all the confederate states. Were he to have too great 
" influence over one, this would alarm the rest. Were he to sub- 
" due a part, that which would still remain free might oppose him 
" with forces independent of those which he had usurped, and 
«' overpower him before he could be settled in his usurpation. 

" Should a popular insurrection happen in one of the confed- 
" erate states, the others are able to quell it. Should abuses creep 
" into one part, they are reformed by those that remain sound. 
" The state may be destroyed on one side, and not on the other ; 
" the confederacy may be dissolved, and the confederates pre- 
" serve their sovereignty. 

* Spirit of Laws, Vol, I, Book IX, Chap. I. 



THE FEDERALIST. 41 

" As this government is composed of small republics, it enjoys 
" the internal happiness of each, and with respect to its external 
" situation, it is possessed, by means of the association, of all the 
" advantages of targe monarchies." 

I have thought it proper to quote at length these interesting pas- 
sages, because they contain a luminous abridgement of the prin- 
cipal arguments in favor of the union, and must effectually re- 
move the false impressions which a misapplication of the other 
parts of the work was calculated to produce. They have, at the 
same time, an intimate connection with the more immediate 
design of this paper, which is to illustrate the tendency of the 
union to repress domestic faction and insurrection. 

A distinction, more subtle than accurate, has been raised be- 
tween a confederacy and a consolidation of the states. The es- 
sential characteristic of the first, is said to be the restriction of its 
authority to the members in their collective capacities, without 
reaching to the individuals of whom they are composed. It is con- 
tended, that the national council ought to have no concern with 
any object of internal administration. An exact equality of suf- 
frage between the members, has also been insisted upon as a lead- 
ing feature of a confederate government. These positions are, in 
the main, arbitrary ; they are supported neither by principle nor 
precedent. It "has indeed happened, that governments of this kind 
have generally operated in the manner which the distinction taken 
notice of supposes to be inherent in their nature ; but there have 
been in most of them extensive exceptions to the practice, which 
serve to prove, as far as example will go, that there is no absolute 
rule on the subject. And it will be clearly shown, in the course 
of this investigation, that as far as the principle contended for has 
prevailed, it has been the cause of incurable disorder and imbe- 
cility in the government. 

The definition of a confederate republic seems simply to be, 
" an assemblage of societies," or an association of two or more 
states into one state. The extent, modifications, and objects of 
the federal authority, are mere matters of discretion. So long as 
the separate organization of the members be not abolished, so 
long as it exists by a constitutional necessity for local purposes, 
though it should be in perfect subordination to the general au- 
thority of the union, it would still be in fact and in theory, an 
association of states, or a confederacy. The proposed constitu- 
tion, so far from implying an abolition of the state governments, 
makes them constituent parts of the national sovereignty, by 
allowing them a direct representation in the senate, and leaves in 
their possession certain exclusive and very important portions of 
the sovereign power. This fully corresponds, in every rational 
import of the terms, with the idea of a federal government. 

In the Lycian confederacy, which consisted of twenty-three 



42 THE FEDERALIST. 

CITIES, or republics, the largest were entitled to three votes in the 
COMMON COUNCIL, those of the middle class to two^ and the smallest 
to one. The common council had the appointment of all the 
judges and magistrates of the respective cities. This was cer- 
tainly the most delicate species of interference in their internal ad- 
ministration ; for if there be any thing that seems exclusively ap- 
propriated to the local jurisdictions, it is the appointment of their 
own officers. Yet Montesquieu, speaking of this association, 
says, " Were I to give a model of an excellent confederate re- 
" public, it would be that of Lycia." Thus we perceive, that the 
distinctions insisted upon were not within the contemplation of 
this enlightened writer ; and we shall be led to conclude, that they 
are the novel refinements of an erroneous theory. PUBLIUS. 



3srxj3>w^DBE:B. :x:_ 

BY JAMES MADISON. 
THE SABIE SUBJECT CONTINUED. 



Among the numerous advantages promised by a well constructed 
union, none deserves to be more accurately developed than its ten- 
dency to break and control the violence of faction. The friend of 
popular governments, never finds himself so much alarmed for their 
character and fate, as when he contemplates their propensity to 
this dangerous vice. He will not fail, therefore, to set a due value 
on any plan which, without violating the principles to which he is 
attached, provides a proper cure for it. The instability, injustice, 
and confusion, introduced into the public councils, have in truth, 
been the mortal diseases under which popular governments have 
everywhere perished ; as they continue to be the favorite and fruit- 
ful topics from which the adversaries to liberty derive tHeir most 
specious declamations. The valuable improvements made by the 
American constitutions on the popular models, both ancient and 
modern, cannot certainly be too much admired ; but it would be 
an unwarrantable partiality, to contend that they have as eifectual- 
ly obviated the danger on this side, as was wished and expected. 
Complaints are everywhere heard from our most considerate and 
virtuous citizens, equally the friends of public and private faith, 
and of public and personal liberty, that our governments are too 
unstable ; that the public good is disregarded in the conflicts of 
rival parties ; and that measures are too often decided, not accord- 
ing to the rules of justice, and the rights of the minor party, but 
by the superior force of an interested and overbearing majority. 
However anxiously we may wish that these complaints had no 



THE FEDERALIST. 43 

foundation, the evidence of known facts will not permit us to 
deny that they are in some degree true. It will be found, indeed, 
on a candid review of our situation, that some of the distresses 
under which we labor, have been erroneously charged on the 
operation of our governments ; but it will be found, at the same 
time, that other causes will not alone account for many of our 
heaviest misfortunes ; and, particularly, for that prevailing and 
increasing distrust of public engagements, and alarm for private 
rights, which are echoed from one end of the continent to the 
other. These must be chiefly, if not wholly, effects of the un- 
steadiness and injustice, with which a factious spirit has tainted 
our public administrations. 

By a faction, I understand a number of citizens, whether 
amounting to a majority or minority of the whole, who are united 
and actuated by some common impulse of passion, or»of interest, 
adverse to the rights of other citizens, or to the permanent and 
aggregate interests of the community. 

There are two methods of curing the mischiefs of faction : The 
one, by removing its causes ; the other, by controlling its effects. 
There are again two methods of removing the causes of fac- 
tion : The one, by destroying the liberty which is essential to 
its existence ; the other, by giving to every citizen the same 
opinions, the same passions, and the same interests. 

It could never be more truly said, than of the first remedy, 
that it was worse than the disease.. Liberty is to faction, what 
air is to fire, an aliment without which it instantly expires. But 
it could not be a less folly to abolish liberty, which is essential 
to political life, becaifse it nourishes faction, than it would be 
to wish the annihilation of air, which is essential to animal 
life, because it imparts to fire its destructive agency. 

The second expedient is as impracticable, as the first would be 
unwise. As long as the reason of man continues fallible, and he 
is at liberty to exercise it, different opinions will be formed. As 
long as the connection subsists between his reason and his self-love, 
his opinions and his passions will have a reciprocal influence on 
each other ; and the former will be objects to which the latter will 
attach themselves. The diversity in the faculties of men, from 
which the rights of property originate, is not less an insuperable 
obstacle to an uniformity of interests. The protection of these 
faculties is the first object of government. From the protection 
of different and unequal faculties of acquiring property, the pos- 
session of different degrees and kinds of property immediately 
results ; and from the influence of these on the sentiments and 
views of the respective proprietors, ensues a division of the so- 
ciety into different interests and parties. 

The latent causes of faction are thus sown in the nature of man ; 

and we see them everywhere brought into different degrees of ac- 

y 



44 THE FEDERALIST. 

tivity, according to the different circumstances of civil society. A 
zeal for different opinions concerning religion, concerning govern- 
ment, and many other points, as well of speculation as of practice ; 
an attachment to different leaders, ambitiously contending for pre- 
eminence and power ; or to persons of other descriptions, whose 
fortunes have been interesting to the human passions, have, in turn, 
divided mankind into parties, inflamed them with mutual animosi- 
ty, and rendered them much more disposed to vex and oppress 
each other, than to cooperate for their common good. So strong 
is this propensity of mankind, to fall into mutual animosities, that 
where no substantial occasion presents itself, the most frivolous and 
fanciful distinctions have been sufficient to kindle their unfriendly 
passions, and excite their most violent conflicts. But the most 
common and durable source of factions, has been the various and 
unequal distribution of property. Those who hold, and those who 
are without property, have ever formed distinct interests in so- 
ciety. Those who are creditors, and those who are debtors, fall 
under a like discrimination. A landed interest, a manufacturing 
interest, a mercantile interest, a moneyed interest, with many 
lesser interests, grow up of necessity in civilized nations and 
divide them into different classes, actuated by different sentiments 
and views. The regulation of these various and interfering in- 
terests forms the principal task of modern legislation, and involves 
the spirit of party and faction in the necessary and ordinary 
operations of the government. 

No man is allowed to be a judge in his own cause ; because his 
interest will certainly bias his judgment, and, not improbably, cor- 
rupt his integrity. With equal, nay with greater reason, a body of 
men are unfit to be both judges and parties at the same time ; yet 
what are many of the most important acts of legislation but so 
many judicial detorminatious, not indeed concerning the rights of 
single persons, but concerning the rights of large bodies of citi- 
zens ? and what are the different classes of legislators, but advo- 
cates and parties to the causes which they determine ? Is a law 
proposed concerning private debts ? It is a question to which the 
creditors are parties on one side, and the debtors on the other. 
Justice ought to hold the balance between them. Yet the parties 
are, and must be, themselves the judges ; and the most numerous 
party, or, in other words, the most powerful faction must be expect- 
ed to prevail. Shall domestic manufactures be encouraged, and in 
what degree by restrictions on foreign manufactures ? are questions 
which would be differently decided by the landed and the manufac- 
turing classes ; and probably by neither with a sole regard to jus- 
tice and the public good. The apportionment of taxes on the va- 
rious descriptions of property, is an act which seems to require the 
most exact impartiality ; yet there is, perhaps, no legislative act in 
which greater opportunity and temptation are given to a predomi- 



THE FEDERALIST. 45 

nant party, to trample on the rules of justice. Every shilling, 
with which they overburden the inferior number, is a shilling 
saved to their own pockets. 

It is in vain to say, that enHghtened statesmen will be able to ad- 
just these clashing interests, and render them all subservient to the 
public good. Enlightened statesmen will not always be at the 
helm : nor in many cases, can such an adjustment be made at all, 
without taking into view indirect and remote considerations, which 
will rarely prevail over the immediate interest which one party may 
find in disregarding the rights of another, or the good of the whole. 

The inference to which we are brought is, that the causes of 
faction cannot be removed ; and that relief is only to be sought 
in the means of controlling its effects. 

If a faction consists of less than a majority, relief is supplied by 
the repul)lican principle, which enables the majority to defeat its 
sinister views, by regular vote. It may clog the administration, it 
may convulse the society; but it will be unable to execute and 
mask its -violence under the forms of the constitution. When a 
majority is included in a faction, the form of popular government, 
on the other, hand, enables it to sacrifice to its ruling passion or in- 
terest, both the public good and the rights of other citizens. To 
secure the public good, and private rights, against the danger of 
such a faction, and at the same time to preserve the spirit and the 
form of popular government, is then the great object to which our 
inquiries are directed. Let me add, that it is the great desidera- 
tum, by which alone this form of government can be rescued 
from the opprobrium under which it has so long labored, and be 
recommended to the esteem and adoption of mankind. 

By what means is this object attainable ? Evidently by one of 
two only. Either the existence of the same passion or interest in 
a majority, at the same time, must be prevented ; or the majority, 
having such coexistent passions or interest, must be rendered, by 
their number and local situation, unable to concert and carry into 
effect schemes of oppression. If the impulse and the opportunity 
be suffered to coincide, we well know, that neither moral nor re- 
ligious motives can be relied on as an adequate control. They are 
not found to be such on the injustice and violence of individuals, 
and lose their efficacy in proportion to the number combined to- 
gether ; that is, in proportion as their efficacy becomes needful. 

From this view of the subject, it may be concluded, that a pure 
democracy, by which I mean a society consisting of a small num- 
ber of citizens, who assemble and administer the government in 
person, can admit of no cure from the &iischiefs of faction. A 
common passion or interest will, in almost every case be felt by a 
majority of the whole ; a communication and concert, results from 
the form of government itself; and there is nothing to check the 
inducements to sacrifice the weaker party, or an obnoxious indi- 



46 THE FEDERALIST. 

vidiial. Hence it is, that such democracies have ever been spec- 
tacles of tnrbnlence and contention ; have ever been found incom- 
patible with personal security, or the rights of property,- and have 
in general, been as short itl their lives, as they have been violent in 
their deaths. Theoretic politicians, who have patronized this spe- 
cies of government, have erroneously supposed, that by reducing 
mankind to a perfect equality in their political rights, they would, 
at the same time, be perfectly equalized and assimilated in their 
possessions, their opinions, and their passions. 

A republic, by which I mean a government in which the 
scheme of representation takes place, opens a different prospect, 
and promises the cure for which we are seeking. Let us exam- 
. ine the points in which it varies from a pure democracy, and we 
shall comprehend both the nature of the cure and the efficacy 
which it must derive from the union. 

The two great points of difference, between a democracy and 
a republic, are, first, the delegation of the government, in the 
latter to a small number of citizens elected by the rest ; secondly, 
the greater number of citizens, and greater sphere of country, 
over which the latter may be extended. 

The effect of the first difference is, on the one hand, to refine 
and enlarge the public views, by passing them through,the medium 
of a chosen body of citizens, whose wisdom may best discern the 
true interest of their country, and whose patriotism and love of 
justice, will be least likely to sacrifice it to temporary or partial 
considerations. Under such a regulation, it may well happen, 
that the public voice, pronounced by the representatives of the 
people, will be more consonant to the public good than if pro- 
nounced by the people themselves, convened for the purpose. On 
the other hand the effect may be inverted. Men of factious tem- 
pers, of local prejudices, or of sinister designs, may by intrigue, by 
corruption, or by other means first obtain the suffrages, and then 
betray the interests of the people. The question resulting is, 
whether small or extensive republics are most favorable to the 
election of proper guardians of the public weal ; and it is clearly 
decided in favor of the latter by two obvious considerations. 

In the first place, it is to be remarked, that however small the 
republic may be, the representatives must be raised to a certain 
number, in order to guard against the cabals of a few ; and that 
however large it may be, they must be limited to a certain num- 
ber, in order to guard against the confusion of a multitude. 
Hence, the number of i^presentatives in the two cases not being 
in proportion to that of the constituents, and being proportionally 
greatest in the small republic, it follows, that if the proportion of 
fit characters be not less in the large than in the small republic, 
the former will present a greater option, and consequently a 
greater probability of a fit choice. 



THE FEDERALIST. 47 

In the next place, as each representative will be chosen by a 
greater number of citizens in the large than in the small republic, 
it will be more difficult for unworthy candidates to practice with 
success the vicious arts, by which elections are too often carried ; 
and the suffrages of the people being more free, will be more 
likely to centre in men who possess the most attractive merit, 
and the most diffusive and established characters. 

It must be confessed, that in thi», as in most other cases, there 
is a mean, on both sides'of which inconveniences will be found 
to lie. By enlarging too much the number of electors, you ren- 
der the representative too little acquainted with all their local cir- 
cumstances and lesser interests ; as by reducing it too much, you 
render him unduly attached to these, and too little fit to compre- 
hend and pursue great and national objects. The federal consti- 
tution forms a happy combination in this respect ; the great and 
aggregate interests being referred to the national, the local and 
particular to the state legislatures. 

The other point of difference is, the greater number of citizens 
and extent of territory, which may be brought within the com- 
pass of republican, than of democratic government; and it is this 
circumstance principally which renders factious combinations less 
to be dreaded in the former, than in the latter. The smaller the 
society, the fewer probably will be the distinct parties and inter- 
ests composing it; the fewer the distinct parties and interests, the 
more frequently will a majority be found of the same party ; and 
the smaller the number of individuals composing a majority, and 
the smaller the compass within which they are placed, the more 
easily will they concert and execute their plans of oppression. 
Extend the sphere, and you take in a greater variety of parties 
and interests ; you make it less probable that a majority of the 
whole will have a common motive to invade the rights of other 
citizens, or if such a common motive exists, it will be more diffi- 
cult for all who feel it to discover their own strength, and to act in 
unison with each other. Besides other impediments, it may be 
remarked, that where there is a consciousness of unjust or dis- 
honorable purposes, communication is always checked by distrust, 
in proportion to the number whose concurrence is necessary. 

Hence, it clearly appears, that the same advantage, which a re- 
public has over a democracy, in controlling the effects of faction, 
is enjoyed by a large over a small republic — is enjoyed by the 
union over the states composing it. Does this advantage consist in 
the substitution of representatives, whose enlightened views and 
virtuous sentiments render them superior to local prejudices, and 
to schemes of injustice ? It will not be denied, that the represen- 
tation of the union will be most likely to possess these requisite 
endowments. Does It consist in the greater security afforded by a 
greater variety of parties, against the event of any one party being 



48 THE FEDERALIST. 

able to outimmber and oppress the rest ? In an equal degree does 
the increased variety of parties, comprised within the union, in- 
crease this security. Does it, in fine, consist in the greater obsta- 
cles opposed to the concert and accomplishment of the secret wish- 
es of an unjust and interested majority ? Here, again, the extent 
of the union gives it the most palpable advantage. 

The influence of factious leaders may kindle a flame within their 
particular states, but will be unable to spread a general conflagra- 
tion through the other states : a religious sect may degenerate into 
a political faction in a part of the confederacy ; but the variety of 
sects dispersed over the entire face of it, rnust secure J;he national 
councils against any danger from that source : a rage for paper 
money, for an abolition of debts, for an equal division of property, 
or for any other improper or wicked project, will be less apt to per- 
vade the whole body of the union than a particular member of it ; 
in the same proportion as such a malady is more likely to taint a 
particular county or district, than an entire state. 

In the extent and proper structure of the union, therefore, we 
behold a republican remedy for the diseases most incident to re- 
publican government. And according to the degree of pleasure 
and pride we feel in being republicans, ought to be our zeal in cher- 
ishing the spirit, and supporting the character of federalists. 

PUBLICS. 



BY ALEXANDER HAMILTON. 
THE UTILITY OF THE UNION IN RESPECT TO COMMERCE AND A NAVY. 

The importance of the union, in a commercial light, is one of 
those points about which there is least room to entertain a ditFer- 
ence of opinion, and which has in fact commanded the most gen- 
eral assent of men, who have any acquaintance with the subject. 
This applies as well to our intercourse with foreign countries, as 
with each other. 

There are appearances to authorize a supposition, that the ad- 
venturous spirit, which distinguishes the commercial character of 
America, has already excited uneasy sensations in several of 
the maritime powers of Europe. They seem to be apprehensive 
of our too great interference in that carrying trade, which is the 
support of their navigation, and the foundation of their naval 
strength. Those of them, which have colonies in America, look 
forward, with painful solicitude, to what this country is capable of 
becoming. They foresee the dangers, that may threaten their 



THE FEDERALIST. 49 

American dominions from the neighborhood of states, which have 
all the dispositions, and Avonld possess all the means, requisite to 
the creation of a powerful marine. Impressions of this kind will 
naturally indicate the policy of fostering divisions among ns, and 
depriving us, as far as possible, of an active commerce in our own 
bottoms. This would answer then the threefold purpose of pre- 
venting our interference in their navigation, of monopolizing the 
profits of our trade, and of clipping the wings on which we might 
soar to a dangerous greatness. Did not prudence forbid the detail, 
it would not be difficult to trace, by facts, the workings of this 
policy to the cabinets of ministers. If wq continue united, we 
may in a variety of ways, counteract a policy so unfriendly to our 
prosperity. By prohibitory regulations, extending at the same time 
throughout the states, we may oblige foreign countries to bid 
against each other, for the privileges of our markets. This asser- 
tion will not appear-chimerical to those who are able to appreciate 
the importance, to any manufacturing nation, of the markets of 
three millions of people, increasing in rapid progression ,• for the 
most part, exclusively addicted to agriculture, and likely from lo- 
cal circumstances to remain in this disposition ; and the immense 
difFerenqe there would be to the trade and navigation of such a 
nation, between a direct communication in its own ships, and an 
indirect conveyance of its products and returns, to and from Amer- 
ica, in the ships of another country. Suppose, for instance, we 
had a government in America, capable of excluding Great Britain 
(with whom we have at present no treaty of commerce) from all 
our ports ; what would be the probable operation of this step 
upon her politics ? Would it not enable us to negotiate, with the 
fairest prospect of success, for commercial privileges of the most 
valuable and extensive kind, in the dominions of that kingdom ? 
When these questions have been asked, upon other occasions, they 
have received a plausible, but not a solid or satisfactory answer. 
It has been said, that prohibitions on our part would produce no 
change in the system of Britain ; because she could prosecute her 
trade with us, through the medium of the Dutch, who would be 
her immediate customers and paymasters for those articles which 
were wanted for the supply of our markets. But \vould not her 
navigation be materially injured, by the loss of the important 
advantage of Jaeing her own carrier in that trade ? Would not 
the principal part of its profits be intercepted by the Dutch, as a 
compensation for their agency and risk ? Would not the mere cir- 
cumstance of freight occasion a considerable deduction ? Would 
not so circuitous an intercourse facilitate the competitions of 
other nations, by enhancing the price of British commodities in 
our markets, and by transferring to other hands the management 
of this interesting branch of the British commerce ? 

A mature consideration of the objects, suggested by these ques- 



50 THE FEDERALIST. 

tions, will jastify a belief, that the real disadvantages to Great Brit- 
ain, from such a state of things, conspiring with the prepossessions 
of a great part of the nation in favor of the American trade, and 
with the importunities of the West India islands, would produce 
a relaxation in her present system, and would let us into the enjoy- 
ment of privileges in the markets of those islands and elsewhere 
from which our trade would derive the most substantial benefits.^ 
Such a point gained from the British government, and which could 
not be expected without an equivalent in exemptions, and inimuni-' . 
ties in our markets, would be likely to have a correspondent effect 
on the conduct of other nations, who would not be inclined to see 
themselves altogether supplanted in our trade. 

A further resource for influencing the conduct of European na- ^ 
tions towards lis, in this respect, would arise from the establishment 
of a federal navy. There can be no doubt, that the continuance 
of the union, under an efficient government, would put it in our 
power, at a period not very distant, to create a navy, which, if it 
could not vie with those of the great maritime powers, would at 
least be of respectable weight, if thrown into the scale of either of 
two contending parties. This would be more particularly the case^ 
in relation to operations in the "West Indies. A few ships of the 
line, sent opportunely to the reinforcement of either side, would 
often be sufficient to decide the fate of a campaign, on the event 
of which, interests of the greatest magnitude were suspended. 
Our position is, in this respect, a very commanding one. And if 
to this consideration we add that of the usefulness of supplies from 
this country, in tho prosecution of military operations in the West 
Indies, it will readily be perceived, that a situation so favorable, 
would enable us to bargain with great advantage for commercial 
privileges. A price would be set, not only upon our friendship, 
but upon our neutrality. By a steady adherence to the union, we 
may hope, ere long, to become the arbiter of Europe in America; 
and to be able to incline the balance of European competitions 
in this part of the world, as our interest may dictate. 

But in the reverse of this eligible situation, we shall discover, 
that the rivalships of the parts would make them checks upon each 
other and would frustrate all the tempting advantages which na- 
ture has kindly placed within our reach. In a state so insignifi- 
cant, our commerce would be a prey to the wanton intermeddlings 
of all nations at war with each other ; who, having nothing ta 
fear from us, would, with little scruple or remorse, supply their 
wanjs h.y depredations on our property, as often as it fell in their 
way. The rights of neutrality will only be respected, when ^ 
they are defended by an adequate power. A nation, despicable 
by its weakness, forfeits even the privilege of being neutral. 

Under a vigorous national government, the natural strength and 
resources of the country, directed to a common interest, would 



THE FEDERALIST. 51 

baffle all the combinations of European jealousy to restrain our 
growth. This situation would even take away the motive to such 
combinations, by inducing an impracticability of success. An ac- 
tive connnerce, an extensive navigation, a flourishing marine, would 
then be the inevitable offspring of moral and physical necessity. 
We might defy the little arts of little politicians to control, or vary 
the irresistible and unchangable course of nature. 

But in a state of disunion, these combinations might exist and 
might operate with success. It would be in the power of the mar- 
itime nations, availing themselves of our universal impotence, to 
prescribe the conditions of our political existence ; and as they 
have a common interest in being our carriers, and still more in pre- 
venting us from becoming theirs, they would, in all probability, 
combine to embarrass our navigation in such a manner, as would 
in effect destroy it, and confine us to a passive commerce. We 
should thus be compelled to content ourselves with the first price 
of our commodities, and to see the profits of our trade snatched 
from us, to enrich our enemies and persecutors. That unequaled 
spirit of enterprise, which signalizes the genius of the American 
merchants and navigators, and which is in itself an inexhaustible 
mine of national wealth, would be stifled and lost ; and poverty 
and disgrace would overspread a country, which, with wisdom, 
might make herself the admiration and envy of the world. 

There are rights of great moment to the trade of America, 
•which are rights of the union ; I allude to the fisheries, to the nav- 
igation of the lakes, and to that of the Mississippi. The dissolu- 
tion of the confederacy would give room for delicate questions, 
concerning the future existence of these rights ; which the interest 
of more powerful partners would hardly fail to solve to our disad- 
vantage. The disposition of Spain, with regard to the Mississippi, 
needs no comment. France and Britain are concerned with us in 
the fisheries ; and view them as of the utmost moment to their 
navigation. They, of course, would hardly remain long iriTiifferent 
to that decided mastery, of which experience has shown us to be 
possessed, in this valuable branch of traffic ; and by which we are 
able to undersell those nations in their own markets. What more 
natural, than that they should be disposed to exclude from the 
lists such dangerous competitors ? 

This branch of trade ought not to be considered as a partial 
benefit. All the navigating states may in different degrees advan- 
tageously participate in it ; and under circumstances of a greater 
extension of mercantile capacity, would not be unlikely to do it. 
As a nursery of seamen, it now is, or, when time shall have more 
nearly assimilated the principles of navigation in the several states, 
will become an universal resource. To the establishment of a 
*iavy, it must be indispensable. 

To this great national object, a navy, union will contribute in 



52 THE FEDERALIST. 

various ways. Every institution will grow and flourish in propor- 
tion to the quantity and extent of the means concentrated towards 
its formation and support. A navy of the United States, as it 
would embrace the resources of all, is an object far less remote 
than a navy of any single state, or partial confederacy, which would 
only embrace the resources of a part. It happens, indeed, that 
different portions of confederated America possess each some pe- 
culiar advantage for this essential establishment. The more south- 
ern states furnish in greater abundance certain kinds of naval stores 
— tar, pitch, and turpentine. Their wood, for the construction of 
ships, is also of a more solid and lasting texture. The difference 
in the duration of the ships of which the navy might be composed, 
if chiefly constructed of southern wood, would be of signal im- 
portance, either in the view of naval strength, or of national econ- 
omy. Some of the southern and of the middle states yield a 
greater plenty of iron, and of better quality. Seamen must chief- 
ly be drawn from' the northern hive. The necessity of naval pro- 
tection to external or maritime commerce, and the conduciveness 
of that species of commerce to the prosperity of a navy, are points 
too manifest to require a particular elucidation. They, by a kind 
of reaction, mutually beneficial, promote each other. 

An unrestrained intercourse between the states themselves, will 
advance the trade of each, by an interchange of their respective 
productions not only for the supply of reciprocal wants, but for ex- 
portation to foreign markets. The veins of commerce in every 
part Avill be replenished, and will acquire additional motion and 
vigor from a free circulation of the commodities of every part. 
Commercial enterprise will have much greater scope, from the di- 
versity in the production of different states. When the staple of 
one fails, from a bad harvest or unproductive crop, it can call to its 
aid the staple of another. The variety, not less than the value of 
products for exportation, contributes to the activity of foreign com- 
merce. It can be conducted upon much better terms, with a large 
number of materials of a given value, than with a small number of 
materials of the same value ; arising from the competitions of trade, 
and from the fluctuations of markets. Particular articles may be in 
great demand at certain periods, and unsaleable at others ; but if 
there be a variety of articles, it can scarcely happen, that they 
should all be at one time in the latter predicament ; and on this 
account, the operation of the merchant would be less liable to any 
considerable obstruction or stagnation. The speculative trader will 
at once perceive the force of these observations ; and will acknowl- 
edge, that the aggregate balance of the commerce of the United 
States, would bid fair to be much more favorable than that of the 
Thirteen States, without union, or with partial unions. 

It may perhaps be replied to this, that whether the states are 
united, or disunited, there would still be an intimate intercourse ^^ 



THE FEDERALIST. 53 

tween them, which would answer, the same ends; but this inter- 
course would be fettered, interrupted, and narrowed, by a multi- 
plicity of causes ; which in the coarse of these papers have been 
amply detailed. An unity of commercial, as well as political in- 
terests, can only result from an unity of government. 

There are other points of view, in which this subject might be 
placed, of a striking and animating kind. But they would lead 
us too far into the regions of futurity, and would involve topics 
not proper for newspaper discussion. I shall briefly observe, that 
our situation invites, and our interests prompt us, to aim at an 
ascendant in the system of American affairs. The world may 
politically, as well as geographically, be divided into four parts, 
each having a distinct set of interests. Unhappily for the other 
three, Europe, by her arms and by her negotiations, by force and 
by fraud, has, in different degrees, extended her dominion over 
them all. Africa, Asia and America, have successively felt her 
domination. The superiority she has long maintained, has tempt- 
ed her to plume herself as the mistress of the world, and to con- 
sider the rest of mankind as created for her benefit. Men admir- 
ed as profound philosophers, have in direct terms, attributed to 
her inhabitants a physical superiority; and have gravely asserted, 
that all animals and with them the human species, degenerate in 
America; that even dogs cease to bark, after having breathed 
awhile in our atmosphere.* Facts have too long supported these 
arrogant pretensions of the European ; it belongs to us to vindi- 
cate the honor of the human race, and to teach that assuming 
brother moderation. Union will enable us to do it. Disunion 
will add another victim to his triumphs. Let Americans disdain 
to be 'the instruments of European greatness! Let the Thirteen 
States, bound together in a strict and indissoluble union, concur 
in erecting one great American system, superior to the control of 
all transatlantic force or influence, and able to dictate the terms 
of the connection between the old and the new world. 

PUBLIUS. 

* Recherches pliilosophiques sur les Americains. 



U THE FEDERALIST. 

BY ALEXANDER HAMILTON. 
' THE UTILITY OF THE UNION IN RESPECT TO REVENUE. 

Ti[E effects of union, upon the conrimercial prosperity of the 
states, have been sufficiently delineated. Its tendency to promote 
the interests of revenue, will be the subject of our present inquiry. 

A prosperous commerce is now perceived and acknowledged, by 
all enlightened statesmen, to be the most useful, as well as the most 
productive source of national wealth ; and has accordingly become 
a primary object of their political cares. By multiplying the means 
of gratification ; by promoting the introduction and circulation of 
the precious metals, those darling objects of human avarice and 
enterprise, it serves to vivify and invigorate all the channels of in- 
dustry, and to make them flow with greater activity and copious- 
ness. The assiduous merchant, the laborious husbandman, the ac- 
tive mechanic, and the industrious manufacturer — all orders of 
men, look forward with eager expectation, and growing alacrity, to 
this pleasing reward of their toils. The often agitated question 
between agriculture and commerce, has from indubitable experi- 
ence, received a decision, which has silenced the rivalships that 
once subsisted between them, and has proved, to the entire satis- 
faction of their friends, that their interests are intimately blended 
and interwoven. It has been found, in various countries, that in 
proportion as commerce lias flourished, land has risen in value. 
And how could it have happened otherwise ? Could that which 
procures a freer vent for the products of the earth ; which furnish- 
es new incitements to the cultivators of land ; which is the most 
powerful instrument in increasing the quantity of money in a 
state — could that, in fine, which is the faithful handmaid of la- 
bor and industry, in every shape, fail to augment the value of that 
article, which is the prolific parent of far the greatest part of the 
objects upon which they are exerted ? It is astonishing, that so 
simple a truth should ever have had an adversary; and it is one 
among a multitude of proofs, how apt a spirit of ill-informed jeal- 
ousy, or of too great abstraction and refinement, is to lead men 
astray from the plainest paths of reason and conviction. 

The ability of a country to pay taxes, must always be propor- 
tioned, in a great degree, to the quantity of money in circulation 
and to the celerity with which it circulates. Commerce, contribut- 
ing to botji these objects, must of necessity render the payment of 
taxes easier, and facilitate the requisite supplies to the treasury. 
The hereditary dominions of the emperor of Germany, contain a 
great extent of fertile, cultivated, and populous territory, a large 
proportion of which is situated in mild and luxuriant climates. In 



THE FEDERALIST. 5S 

gomfi parts of this territory are to be found the best gold and silver 
mines in Europe. And yet, from the want of the fostering influ- 
ences of commerce, that monarch can boast but slender revenues- 
He has several times been compelled to owe obligations to the 
pecuniary succors of other nations, for the preservation of his 
essential interests; and is unable, upon the strength /of his own 
resources, to sustain a long or continued war. 

But it is not in this aspect of the subject alone, that union will 
be seen to conduce to the purposes of revenue. There are other 
points of view, in which its influence will appear more immediate 
and decisive. It is evident from the state of the country, from the 
habits of the people, from the experience we have had on the 
point itself, that it is impracticable to raise any very considerable 
sums by direct taxation. Tax laws have in vain been multiplied ; 
new methods to enforce the collection have in vain been tried ; the 
public expectation has been uniformly disappointed, and the treas- 
uries of the states have remained empty. The popular system of 
admininistration, inherent in the nature of popular government, 
coinciding with the real scarcity of money, incident to a languid 
and mutilated state of trade, has hitherto defeated every experi- 
ment for extensive collections, and has at length taught the 
difl"erent legislatures the folly of attempting them. 

No person acquainted with what happens in other countries, will 
be surprised at this circumstance. In so opulent a nation as that 
of Britain, where direct taxes, from superior v/ealth, must be 
much more tolerable, and, from the vigor of the governmentj 
much more practicable, than in America, far the greatest part of 
the national revenue is derived from taxes of the indirect kind ; 
from imposts, and from excises. Duties on imported articles 
form a large branch of this latter description. 

In America, it is evident, that we must a long time depend for 
the means of revenue, chiefly on such duties. In most parts of it, 
excises must be confined within a narrow compass. The genius of 
the people will illy brook the inquisitive and peremjatory spirit of 
excise laws. The pockets of the farmers, on the other hand, will 
reluctantly yield but scanty supplies, in the unwelcome shape of 
impositions on their houses and lands; and personal property is 
too precarious and invisible a fund to be laid hold of in any other 
way, than by the imperceptible agency of ta.\es on consumption. 
If these remarks have any foundation, that state of things which 
will best enable us to improve and extend so valuable a resource, 
must be the best adapted to our political welfare. And it cannot 
admit of a serious doubt, that this state of things must rest on the 
basis of a general union. As far as this would be conducive to the 
interests of commerce, so far it must tend to the extension of the 
revenue to be drawn from that source. As far as it Avould coritri- 
bute to render regulations for the coUeetion of the duties more 



56 THE FEDERALIST. 

simple and efficacious, so far it must serve to answer the purposes 
of making the same rate of duties more productive, and of put- 
ting it into the power of the government to increase the rate 
without prejudice to trade. 

The relative situation of these states ; the number of rivers with 
which they are intersected, and of bays that wash their shores ; 
the.faciUty of communication in every direction ; the affinity of 
language and manners ; the familiar habits of intercourse ; all these 
are circumstances that would conspire to render an illicit trade be- 
tv/een them a matter of little difficulty ; and would ensure frequent 
evasions of the commercial regulations of each other. The sepa- 
rate states, or confederacies, would be driven by mutual jealousy 
to avoid the temptations to that kind of trade, by the lowness of 
their duties. The temper of our governments for a long time to 
come would not permit those rigorous precautions, by which the 
European nations guard the avenues into their respective countries, 
as well by land as by water, and which even there, are found in- 
sufficient obstacles to the adventurous stratagems of avarice. 

In France, there is an army of patrols (as they are called) con- 
stantly employed to secure her fiscal regulations against the iuroads 
of the dealers in contraband. Mr. Neckar computes the number 
of these patrols at upwards of twenty thousand. This proves the 
immense difficulty in preventing that species of traffic, where there 
is an inland communication, and shov/s in a strong light the disad- 
X'-antages, with which the collection of duties in this country would 
be incumbered, if by disunion the states should be placed iu a 
situation with respect to each other, resembling that of France 
with respect to her neighbors. The arbitrary and vexatious 
powers with which the patrols are necessarily armed, would be 
intolerable in a free country. 

If, on the contrary, there be but one government, pervading all 
the states, there will be, as to the principal part of our commerce, 
but ONE SIDE to guard — the Atlantic coast. Vessels arriving 
directly frorr^ foreign countries, laden with valuable cargoes, would 
rarely choose ,to expose themselves to the complicated and critical 
perils which would attend attempts to unlade prior to their coming 
into port. They would have to dread both the dangers of the 
coast, and of detection, as well after, as before their arrival at the 
places of their final destination. An ordinary degree of vigilance 
would be competent to the prevention of any material infractions 
upon the rights of the revenue, A few armed vessels, judiciously 
stationed and employed, might at small expense be made useful 
sentinels of the laws. And the government, having the same in- 
terest to provide against violations everywhere, the cooperation of 
its measures in each state, would have a powerful tendency to ren- 
der them effectual. Here also we should preserve, by union, an 
advantage which nature holds out to 1,1 s, and which would be re- 



THE FEDERALIST. 67 

linqnished by separation. The United States lie at a great distance 
from Europe, and at a considerable distance from all other places, 
with which they would have extensive connexions of foreign trade. 
The passage from them to ns in a few hours, or in a single night, 
as between the coasts of France and Britain, and of other neigh- 
boring nations, would be impracticable. This is a prodigious secu- 
rity against a direct contraband with foreign countries ; but a cir- 
cuitous contraband to one state, through the medium of another, 
would be both easy and safe. The difference between a direct 
importation from abroad, and an indirect importation through the 
channel of an adjoining state, in small parcels, according to time 
and opportunity, with the additional facilities of inland communi- 
cation, must be palpable to every man of discernment. 

It is, therefore, evident, that one national government would be 
able, at much less expense, to extend the duties on imports, beyond 
comparison further, than would be practicable to the states sepa-'' 
rately, or to any partial confederacies : hitherto, I believe, it may 
safely be asserted, that these duties have not upon an average ex- 
ceeded in any, state three per cent. In France they are estimated 
at about Jfifteen per cent, and in Britain the proportion is still 
greater. There seems to be nothing to hinder their being increas- 
ed in this country, to at least treble their present amount. The 
single article of ardent spirits, under federal regulation, might be 
made to furnish a considerable revenue. According to the ratio 
of importation into this state, the Avhole quantity imported into the 
United States may, at a low computation, be estimated at four mil- 
lions of gallons; which, at a shilling per gallon, would produce 
two hundred thousand pounds. That article would well bear this 
rate of duty j and if it should tend to diminish the consumption 
of it, such an effect would be equally favorable to the agriculture, 
, to the economy, to the morals, and to the health of society. There 
is, perhaps, nothing so much a subject of national extravagance, as 
this very article. 

Wliat will be the consequence, if we are not able to avail our- 
selves of the resource in question in its full extent ? A nation can- 
not long exist without revenue. Destitute of this essential sup- 
port, it must resign its independence, and sink into the degraded 
condition of a province. This is an extremity to which no gov- 
ernment will of choice accede. Revenue, therefore, must be had 
at all events. In this country, if the principal part be not drawn 
from commerce, it must fall with oppressive weight upon land. It 
has been already intimated that excises, in their true signification, 
are too little in unison with the feelings of the people, to admit of 
great use being made of that mode of taxation ; nor, indeed, in 
the states where almost the sole employment is agriculture, are the 
objects proper for excise sufficiently numerous, to permit very am- 
ple collections in that way. Personal estate, as before remarked, 

8 



58 THE FEDERALIST. 

from the difficulty of tracing it, cannot be subjected to large con- 
tributions, by any other means than by taxes on consumption. In 
popular cities, it may be enough the subject of coi}jecture, to oc- 
casion the oppression of individuals, without much aggregate ben- 
efit to the state ; but beyond these circles, it must, in a great 
measure, escape the eye and the hand of the tax gatherer. As 
the necessities of the state, nevertheless, must be satisfied in some 
mode, the defect of other resources must throw the principal weight 
of the public burthens on the possessors of land. And as, oh the 
other hand, the wants of the government can never obtain an ad- 
equate supply, unless all the sources of revenue are open to its de- 
mands, the finances of the community, under such embarrassments, 
cannot be put into a situation consistent with its respectability or 
its security. Thus we shall not even have the consolation of a full 
treasury, to atone for the oppression of that valuable class of citi- 
zens, who are employed in the cultivation of the soil. But public 
and private distress will keep pace with each other in gloomy con- 
cert ; and unite in deploring the infatuation of those counsels 
which led to disunion. PUBLIUS. 



BY ALEXANDER HAMILTON. 
THE SAME SUBJECT CONTINUED, WITH A VIEW TO ECONOMY". 

As CONNECTED with the subject of revenue, we may with propri- 
ety consider that of economy. The money saved from one ob- 
ject, mjiy be usefully applied to another ; and there will be so much 
the less to be drawn from the pockets of the people. If the states be 
united under one government, there will be but one national civil 
list to support : if they are divided into several confederacies, there 
will be as many different national civil lists to be provided for ; and 
each of them, as to the principal departments, coextensive with 
that which would be necessary for a government of the whole. 
The entire separation of the states into thirteen unconnected sove- 
reignties, is a project too extravagant, and too replete with dan- 
ger, to have many advocates. The ideas of men who speculate 
upon the dismemberment of the empire, seem generally turned 
towards three confederacies ; one consisting of the four northern, 
another of the four middle, and a third of the five southern states. 
There is little probability that there would be a greater number. 
According to this distribution, each confederacy would comprise an 
extent of territory larger than that of the kingdom of Great Britain. 



THE FEDERALIST. 59 

No well-informed man will suppose that the affairs of such a con- 
federacy can be properly regulated by a government less compre- 
hensive in its organs or institutions, than that which has been pro- 
posed by the convention. When the dimensions of a state attain 
to a certain magnitude, it requires the same energy of government, 
and the same forms of administration, which are requisite in one 
of much greater extent. This idea admits not of precise demon- 
stration, because there is no rule by which we can measure the 
momentum of civil power, necessary to the government of any 
given number of individuals ; but when we consider that the isl- 
and of Britain, nearly commensurate with each of the supposed 
confederacies, contains about eight millions of people, and when . 
we reflect upon the degree of authority required to direct the pas- 
sions of so large a society to the public good, we shall see no 
reason to doubt, that the like portion of power would be suffi- 
cient to perform the same task in a society far more numerous. 
Civil power, properly organized and exerted, is capable of diffusing 
its force to a very great extent ; and can, in a manner, reproduce 
itself in every part of a great empire, by a judicious arrangement 
of subordinate institutions. 

The supposition, that each confederacy into which the states 
would be likely to be divided, would require a government not less 
comprehensive than the one proposed, will be strengthened by an- 
other conjecture, more probable than that which presents us with 
three confederacies, as the alternative to a general union. If we 
attend carefully to geographical and commercial considerations, in 
conjunction with the habits and prejudices of the different states, 
we shall be led to conclude, that in case of disunion, they will most 
naturally league themselves under two governments. The four eas- 
tern states, from all the causes that form the links of national sym- 
pathy and connection, may with certainty be expected to unite. 
New York, situated as she is, would never be unwise enough to 
oppose a feeble and unsupported flank to the weight of that con- 
federacy. There are obvious reasons, that would facilitate her ac- 
cession to it. New Jersey is too small a state to think of being a 
frontier, in opposition to this still more powerful combination ; nor 
do there appear to be any obstacles to her admission into it. Even 
Pennsylvania would have strong inducements to join the north- 
ern league. An active foreign commerce, on the basis of her own 
navigation, is her true policy, and coincides with the opinions 
and disposition of her citizens. The more southern states, from 
various circumstances, may not think themselves much interested 
in the encouragement of navigation. They may prefer a system, 
which would give unlimited scope to all nations, to be the carriers, 
as well as the purchasers, of their commodities. Pennsylvania may 
not choose to confound her interests in a connection so adverse to 
her policy. As she must, at all events, be a frontier, she may deem 



60 THE FEDERALIST. 

it most consistent with her safety, to have her exposed side turn- 
ed towards the weaker power of the southern, rather than towards 
the stronger power of the northern confederacy. This would 
give her the fairest chance to avoid being the Flanders of Amer- 
ica. Whatever may be the determination of Pennsylvania, if the 
northern confederacy includes New Jersey, there is no likelihood 
of more than one confederacy to the south of that state. 

Nothing can be more evident than that the Thirteen States will: 
be able to support a national government, better than one half or 
one third, or any number less than the whole. This reflection 
must have great weight in obviating that objection to the propos- 
ed plan, which is founded on the principle of expense ; an objec- 
tion however, which, when we come to take a nearer view of it, 
will appear in every light to stand on mistaken ground. 

If, in addition to the consideration of a plurality of civil lists, 
we take into view the number of persons who must necessarily 
be employed to guard the inland communication between the dif- 
ferent confederacies, against illicit trade, and who in time will in- 
fallibly spring up out of the necessities of revenue ; and if we 
also take into view the military establishments which it has been 
shown would unavoidably result from the jealousies and conflicts 
of the several nations into which the slates would be divided, we 
shall clearly discover that a separation would be not less injurious 
to the economy, than to the tranquillity, commerce, revenue, and 
liberty of every part. PUBLIUS. 



BY JAMES MADISON. 



AN OBJECTION DRAWN FROM THE EXTENT OF COUNTRY ANSWERED. 

We have seen the necessity of the union, as our bulwark against 
foreign danger; as the conservator of peace among ourselves; as 
the guardian of our commerce, and other common interests ; as 
the only substitute for those military establishments which have 
subverted the liberties of the old world ; and as the proper anti- 
dote for the diseases of faction, which have proved fatal to other 
popular governments, and of which alarming symptoms have been 
betrayed by our own. All that remains, within this branch of our 
inquiries, is to take notice of an objection, that may be drawn 
from the great extent of country which the union embraces. A 
few observations, on this subject, will be the more proper, as it is 
perceived that the adversaries of the new constitution are availing 



THE FEDERALIST. 61 

themselves of a prevailing prejudice, with regard to the practica- 
ble sphere of republican administration, in order to supply, by 
imaginary difficulties, the want of those solid objections, which 
they endeavor in vain to find. 

The error which limits republican government to a narrow dis- 
trict, has been unfolded and refuted in preceding papers. I re- 
mark here only, that it seems to owe its rise and prevalence chiefly 
to the confounding of a republic with a democracy ; and applying 
to the former, reasonings drawn from the nature of the latter. 
The true distinction between these forms, was also adverted to on 
a former occasion. It is, that in a democracy, the people meet 
and exercise the government in person : in a republic, they 
assemble and administer it by their representatives and agents. 
A democracy, consequently, must be confined to a small spot. 
A republic may be extended over a large region. 

To this accidental source of the error, may be added the arti- 
fice of some celebrated authors, whose writings have had a great 
share in forming the modern standard of political opinions. Be- 
ing subjects, either of an absolute, or limited monarchy, they 
have endeavored to heighten the advantages, or palliate the evils, 
of those forms, by placing in comparison with them the vices 
and defects of the republican, and by citing, as specimens of the 
latter, turbulent democracies of ancient Greece and modern Italy. 
Under the confusion of names, it has been an easy task to trans- 
fer to a republic, observations applicable to a democracy only; 
and among others, the observation that it can never be established 
but' among a small number of people, living within a small com- 
pass of territory. 

Such a fallacy may have been the less perceived, as most of the 
popular governments of antiquity were of the democratic species ; 
and even in modern Europe, to which we owe the great principle 
of representation, no example is seen of a government wholly 
popular, and founded, at the same time, wholly on that principle. 
If Europe has the merit of discovering this great mechanical 
power in government, by the simple agency of which, the will 
of the largest political body may be concentered, and its force 
directed to any object, which the public good requires ; America 
can claim the merit of making the discovery the basis of un- 
mixed and extensive republics. It is only to be lamented, that 
any of her citizens should wish to deprive her of the additional 
merit of displaying its full efficacy in the establishment of the 
comprehensive system now under her consideration. 

As the natural limit of a democracy is that distance from the 
central point, which will just permit the most remote citizens to as- 
semble as often as their public functions demand, and will include 
no greater number than can join in those functions ; so the natu- 
ral limit of a republic, is that distance from the centre, which will 



62 THE FEDERALIST. 

barely allow the representatives of the people to meet as often as 
may be necessary for the administration of pnblic affairs. Can it 
be said, that the limits of the United States exceed this distance ? 
It will not be said, by those who recollect, that the Atlantic coast 
is the longest side of the union, that during the term of thirteen 
years, the representatives of the states have been almost continu- 
ally assembled ; and that the members from the most distant 
states are not chargeable with greater intermissions of attendance, 
than those from the states in the neighborhood of Congress. 

That we may form a juster estimate with regard to this interest- 
ing subject, let us resort to the actual dimensions of the union. 
The limits, as fixed by the treaty of peace, are, on the east the 
Atlantic, on the south the latitude of thirty-one degrees, on the 
west the Mississippi, and on the north an irregular line running 
in some instances beyond the forty-fifth degree, in others falling 
as low as the forty-second. The southern shore of lake Erie lies 
below that latitude. Computing the distance between the thirty- 
first and forty-fifth degrees, it amounts to nine hundred and 
seventy-three common miles; computing it from thirty-one to 
forty-two degrees, to seven hundred sixty-four miles and a half. 
Taking the mean for the distance, the amount will be eight hun- 
dred sixty-eight miles and three fourths. The mean distance from 
the Atlantic to the Mississippi, does not probably exceed seven hun- 
dred and fifty miles. On a comparison of this extent, with that 
of several countries in Europe, the practicability of rendering our 
system commensurate to it, appears to be demonstrable. It is 
not a great deal larger than Germany, where a diet, representing 
the whole empire, is continually assembled ; or than Poland be- 
fore the late dismemberment, where another national diet was the 
depositary of the supreme power. Passing by France and Spain, 
we find that in Great Britain, inferior as it may be in size, the 
representatives of the northern extremity of the island, have as 
farto travel to the national council, as will be required of those 
of the most remote parts of the union. 

Favorable as this view of the subject may be, some observa- 
tions remain, which will place it in a light still more satisfactory. 

In the first place it is to be remembered, that the general gov- 
ernment is not to be charged with the whole power of making 
and administering laws : its jurisdiction is limited to certain enu- 
merated objects, which concern all the members of the republic, 
but which are not to be attained by the separate provisions of 
any. The subordinate governments which can extend their care 
to all those other objects which can be separately provided for will 
retain their due authority aud activity. Were it proposed by the 
plan of the convention, to abolish the governments of the partic- 
ular states, its adversaries would have some ground for their objec- 
tion ; though it would not be difficult to show, that if they were 



THE FEDERALIST. 63 

abolished the general government would be compelled, by the 
principle of self-preservation, to reinstate them in their proper ju- 
risdiction. 

A second observation to be made is, that the immediate object 
of the federal constitution, is to secure the union of the thir- 
teen primitive states, which we know to be practicable ; and to 
add to them such other states, as may arise in their own bosoms 
or in their neighborhoods, which we cannot doubt to be equally 
practicable. The arrangements that may be necessary for those 
angles and fractions of our territory, which lie on our north-west- 
ern frontier, must be left to those whom further discoveries and 
experience will render more equal to the task. 

Let it be remarked, in the third place, that the intercourse 
throughout the union will be daily facilitated by new improve- 
ments. Roads will everywhere be shortened, and kept in better 
order ; accommodations for travelers will be multiplied and melior- 
ated ; an interior navigation on our eastern side, will be opened 
throughout, or nearly throughout, the whole extent of the Thir- 
teen States. The communication between the western and At- 
lantic districts, and between different parts of each, will be ren- 
dered more ahd more easy, by those numerous canals with which 
the beneficence of nature has intersected our country, and which 
art finds it so little difficult to connect and complete. 

A fourth, and still more important consideration, is, that as al- 
most every state will, on one side or other, be a frontier, and will 
thus find, in a regard to its safety, an inducement to make some 
sacrifices for the sake of the general protection : so the states 
which lie at the greatest distance from the heart of the union, and 
which of course may partake least of the ordinary circulation of 
its benefits, will be at the same time immediately contiguous to 
foreign nations, and will constantly stand, on particular occasions, 
in greatest need of its strength and resources. It may be incon- 
venient for Georgia, or the states forming our western or north- 
eastern borders, to send their representatives to the seat of gov- 
ernment ; but they would find it more so to struggle alone against 
an invading enemy, or even to support alone the whole expense of 
those precautions, which may be dictated by the neighborhood of 
continual danger. If they should derive less benefit, therefore, 
from the union in some respects, thau the less distant states, they 
will derive greater benefit from it in other respects, and thus the 
proper equilibrium will be maintained throughout. 

I submit to you, my fellow-citizens, these considerations, in full 
confidence that the good sense which has so often marked your de- 
cisions, will allow them their due weight and effect, and that you will 
never suffer difficulties, however formidable in appearance, or how- 
ever fashionable the error on which they may be founded, to drive 
you irtto the gloomy and perilous scenes into which the advocates 



64 THE FEDERALIST*. 

for disunion would conduct you. Hearlten not to the unnatural 
voice, which tells you that the people of America, knit together as 
they are by so many chords of affection, can no longer live togeth- 
er as members of the same family ; can no longer continue the 
mutual guardians of their mutual happiness ; can no longer be fel- 
low-citizens of one great, respectable, and flourishing empire. 
Hearken not to the voice, which petulantly tells you, that the form 
of government recommended for your adoption, is a novelty in the 
political world ; that it has never yet had a place in the theories 
of the wildest projectors ; that it rashly attempts what it is impos- 
sible to accomplish. No, my countrymen, shut your ears against 
this unhallowed language. Shut your hearts against the poison 
which it conveys. The kindred blood which flows in the veins of 
American citizens, the mingled blood which they have shed in de- 
fence of their sacred rights, consecrate their union, and excite 
horror at the idea of their becoming aliens, rivals, enemies. And 
if novelties are to be shunned, believe me, the most alarming of all 
novelties, the most wild of all projects, the most rash of all at- 
tempts, is that of rending us in pieces, in order to preserve our 
liberties, and promote our happiness. But why is the experiment 
of an extended republic to be rejected, merely because it may corn- 
prise what is new ? Is it not the glory of the people of America, 
that whilst they have paid a decent regard to the opinions of form- 
er times and other nations, they have not sufl"ered a blind venera- 
tion for antiquity, for custom, or for names, to overrule the sugges- 
tions of their own good sense, the knowledge of their own situa- 
tion, and the lessons of their own experience ? To this manly 
spirit, posterity will be indebted for the possession, and the world 
for the example, of the numerous innovations displayed on the 
American theatre in favor of private rights and public happiness. 
Had no important step been taken by the leaders of the revolution, 
for which a precedent could not be discovered; no government es- 
tablished of which an exact model did not present itself, the people 
of the United States might, at this moment, have been numbered 
among the melancholy victims of misguided councils; must at best 
have been laboring under the weight of some of those forms which 
have crushed the liberties of the rest of mankind. Happily for 
America, happily we trust for the whole human race, they pursued 
a new and more noble course. They accomplished a revolution 
which has no parallel in the annals of human society. They 
reared the fabrics of governments which have no model on the face 
of the globe. They formed the design of a great confederacy, 
which it is incumbent on their successors to improve and perpetu- 
ate. If their works betray imperfections, we wonder at the few- 
ness of them. If they erred most in the structure of the union, 
this was the work most difficult to be executed ; this is the work 



THE FEDERALIST. 65 

which has been new modelled by the act of your convention, and 
it is that act on which you are now to dehberate and to decide. 

PUBLIUS. 



BY ALEXANDER HAMILTON. 

CONCERNING THE DEFECTS OP THE PRESENT CONFEDERATION, IN 
RELATION TO THE PRINCIPLE OF LEGISLATION FOR THE STATES 
IN THEIR COLLECTIVE CAPACITIES. 

In the course of the preceding papers, I have endeavored, my 
fellow-citizens, to place before you, in a clear and convincing light 
the importance of union to your political safety and happiness. 
I have unfolded to you a complication of dangers to which you 
would be exposed, should you permit that sacred knot, which 
binds the people of America together, to be severed or dissolved 
by ambition, or by avarice, by jealousy, or by misrepresentation. 
In»the sequel of the inquiry, through which I propose to accom- 
pany you, the truths intended to be inculcated will receive further 
confirmation from facts and arguments hitherto unnoticed. If the 
road, over which you will still have to pass, should in some places 
appear to you tedious or irksome, you will recollect, that you are in 
quest of information on a subject the most momentous, which can 
engage the attention of a free people ; that the fieljl through which 
you have to travel is in itself spacious, and that the difficulties of 
the journey have been unnecessarily increased by the mazes with 
which sophistry has beset the way. It will be my aim to remo.ve 
the obstacles to your progress, in as compendious a manner as it 
can be done, without sacrificing utility to dispatch. 

In pursuance of the plan, which I have laid down for the dis- 
cussion of the subject, the f^int next in order to be examined, is 
the "insufficiency of the present confederation to the preservation 
of the union." 

It may perhaps be asked, what need there is of reasoning or 
proof to illustrate a position, which is neither controverted nor 
doubted ; to which the understandings and feelings of all classes 
of men assent j and which in substance is admitted by the oppo- 
nents as well as by the friends of the new constitution ? It must 
in truth be acknowledged, that however these may differ in other 
respects, they in general appear to harmonize in the opinion, that 
there are material imperfections in our national system, and that 
something is necessary to be done to rescue us from impending 
anarchy. The facts that support this opinion, ar.e no longer objects 

9 



66 THE FEDERALIST, 

of speculation. They have forced themselves upon the sensibility 
of the people at large, and have at length extorted from those, 
whose mistaken policy has had the principal share in precipitating 
the extremity at which we are arrived, a reluctant confession of the 
reality of many of those defects in the scheme of our federal gov- 
ernment, which have been long pointed out and regretted by the 
intelligent friends of the union. 

We may indeed, with propriety, be said to have reached almost 
the last stage of national humiliation. There is scarcely any thing 
that can wound the pride, or degrade the character, of an independ- 
ent people, which we do not experience. Are there engagements, 
to the performance of which we are held by every tie respectable 
among men ? These are the subjects of constant- and unblushing 
violation. Do we owe debts to foreigners, and to our own citizens, 
contracted in a time of imminent peril, for the preservation of our 
political existence ? These remain without any proper or satisfac- 
tory provision for their discharge. Have we valuable territories 
and important posts in the possession of a foreign power, which, by 
express stipulations, ought long since to have been surrendered ? 
These are still retained, to the prejudice of our interests not less 
than of our rights. Are we in a condition to resent or to repel the 
aggression ? We have neither troops, nor treasury, nor govern- 
ment.* Are we even in a condition to remonstrate with dignity ? 
The just imputations on our own faith, in respect to the same treaty, 
ought first to be removed. Are we entitled, by nature and com- 
pact, to a free participation in the navigation of the Mississippi ? 
Spain excludes us from it. Is public credit an indispensable re- 
source in time of public danger ? We seem to have abandoned its 
cause as desperate and irretrievable. Is commerce of importance 
to national wealth ? Ours is at the lowest point of declension. Is 
respectability in the eyes of foreign powers, a safeguard against 
foreign encroachments ? The imbecility of our government even 
' forbids them to treat with us : our ambassadors abroad are the mere 
pageants of mimic sovereignty. Is a violent and unnatural de- 
crease in the value of land, a symptom of national distress ? The 
price of improved land, in most parts ol the country, is much low- 
er than can be accounted for by the quantity of waste land at 
market, and can only be fully explained by that want of private 
. and public confidence, which are so alarmingly prevalent among all 
ranks, and which have a direct tendency to depreciate property of 
every kind. Is private credit the friend and patron of industry ? 
That most useful kind which relates to borrowing and lending, is 
reduced within the narrowest limits, and this still more from an 
opinion of insecurity than from a scarcity of money. To shorten 
an enumeration of particulars which can afford neither pleasure nor 
instruction, it may in general be demanded what indication is there 

* I mean for tlie union. 



THE FEDERALIST. 67 

of natilbnal disorder, poverty, and insignificance, that could befal 
a community so peculiarly blessed with natural advantages as 
we are, which does not form a part of the dark catalogue of 
our public misfortunes ? 

This is the melancholy situation to which we have been 
brought by those very maxims and counsels, which would now 
deter us from adopting the proposed constitution; and which, not 
content with having conducted us to the brink of a precipice, 
seem resolved to plunge us into the abyss that awaits us below. 
Here, my countrymen, impelled by every motive that ought to 
influence an enlightened people, let us make a firm stand for our 
safety, our tranquillity, our dignity, our reputation. Let us at 
last break the fatal charm which has too long seduced us from 
the paths of felicity and prosperity. 

It is true, as has been before observed, that facts, too stubborn 
to be resisted, have produced a species of general assent to the ab- 
stract proposition, that there exist material defects in bur national 
system ; but the usefulness of the concession on the part of the 
old adversaries of federal measures, is destroyed by a strenuous 
opposition to a remedy, upon the only principles that can give it a 
chance of success. While they admit that the government of the 
United States is destitute of energy, they contend against confer- 
ring upon it those powers which are requisite to supply that energy. 
They seem still to aim at things repugnant and irreconcilable ; at 
an augmentation of federal authority, without a diminution of state 
authority ; at sovereignty in the union, and complete independence 
in the members. They still, in fine, seem to cherish with blind de- 
votion the political monster of an imperium i?i hnperio. This 
rendere a full display of the principal defects of the confederation 
necessary, in order to show, that the evils we experience do not 
proceed from minute or partial imperfections, but from fundamental 
errors in the structure of the building, which cannot be amended, 
otherwise than by an alteration in the very elements and main pil- 
lars of the fabric. 

The great and radical vice, in the construction of the existing 
confederation, is in the principle of legislation for states or gov- 
ernments, in their corporate or collective capacities, and as 
contradistinguished from the individuals of whom they consist. 
Though this principle does not run through all the powers delegat- 
ed to the union ; yet it pervades and governs those on which the 
efficacy of the rest depends ; except, as to the rule of apportion- 
ment, the United States have an indefinite direction to make re- 
quisitions for men and money ; but they have no authority to raise 
either, by regulations extending to the individual citizens of Amer- 
ica. The consequence of this is, that, though in theory, their reso- 
lutions concerning those objects are laws, constitutionally binding 
on the members of the union j yet in practice, they are mere re- 



68 THE FEDERALIST. 

commendations, which the states observe or disregard at their op- 
tion. 

It is a singular instance of the capriciousness of the human 
mind, that after all the admonitions we have had from experience 
on this head, there should still be found men, who object to the 
new constitution, for deviating from a principle which has been 
found the bane of the old ,■ and which is, in itself, evidently in- 
compatible with the idea of a government ; a principle, in short, 
which, if it is to be executed at all, nriust substitute the violent and 
sanguinary agency of the sword, to the mild influence of the mag- 
istracy. 

There is nothing absurd or impracticable, in the idea of a league 
or alliance between independent nations, for certain defined purpo- 
ses precisely stated in a treaty ; regulating all the details of time, 
place, circumstance, and quantity ; leaving nothing to future dis- 
cretion ; and depending for its execution on the good faith of the 
parties. Compacts of this kind exist among all civilized nations, 
subject to the usual vicissitudes of peace and war ; of observance 
and non-observance, as the interests or passions of the contracting 
powers dictate. In the early part of the present century, there 
was an epidemical rage in Europe for this species of compacts ; 
from which the politicians of the times fondly hoped for benefits 
which were never realized. With a view to establishing the equi- 
librium of power, and the peace of that part of the world, all the 
resources of negotiation were exhausted, and triple and quadruple 
alliances were formed ; but they were scarcely formed before they 
were broken, giving an instructive, but afilicting lesson to mankind, 
how little dependence is to be placed on treaties which have no 
other sanction than the obligations of good faith ; and which op- 
pose general considerations of peace and justice, to the impulse of 
any immediate interest or passion. 

If the particular states in this country are disposed to stand in a 
similar relation to each other, and to drop the project of a general 
DISCRETIONARY SUPERINTENDENCE, the schcmc would indeed be 
pernicious, and would entail upon us all the mischiefs which have 
been enumerated under the first head ; but it would have the merit 
of being, at least, consistent and practicable. Abandoning all 
views towards a confederate government, this would bring us to a 
simple alliance, oflensive and defensive ; and would place us in a 
situation to be alternately friends and enemies of each other, as our 
mutual jealousies and rivalships, nourished by the intrigues of for- 
eign nations, should prescribe to us. 

But if we are unwilling to be placed in this perilous situation ; 
if we still adhere to the design of a national government, or, which 
is the same thing, of a superintending power, under the direction 
of a common council, we must resolve to incorporate into our plan 
those ingredients, which may be considered as forming the charac- 



THE FEDERALIST. 69 

teristic difFerence between a league and a government ; we must 
extend the authority of the union to the persons of the citizens — 
the only proper objects of government. 

Government implies the power of making laws. It is essential 
to the idea of a law, that it be attended with a sanction ; or in 
other words, a penalty or punishment for disobedience. If there 
be no penalty annexed to disobedience, the resolutions or com- 
mands which pretend to be laws, will in fact amount to nothing 
more than advice or recommendation. This penalty, whatever it 
may be, can only be inflicted in two ways ; by the agency of the 
courts and ministers of justice, or by military force ; by the co- 
ercion of the magistracy, or by the coercion of arms. The first 
kind can evidently apply only to men : the last kind must of ne- 
cessity be employed against bodies politic, or communities, or 
states. It is evident, that there is no process of a court by which 
their observance of the laws can, in the last resort, be enforced. 
Sentences may be denounced against them for violations of their 
duty ; but these sentences can only be carried into execution by 
the sword. In an association, where the general authority is con- 
fined to the collective bodies of the communities that compose it, 
every breach of the laws must involve a state of war, and mili- 
tary execution must become the only instrument of civil obedi- 
ence. Such a state of things can certainly not deserve the name 
of government, nor would any prudent man choose to commit 
his happiness to it. 

There was a time when we were told that breaches, by the 
states, of the regulations of the federal authority were not to be 
expected ; that a sense of common interest would preside over 
the conduct of the respective members, and would beget a full 
compliance with all the constitutional requisitions of the union. 

This language, at the present day, would appear as wild as a 
great part of \Vhat we now hear from the same quarter will be 
thought, when we shall have received further lessons from that 
bist oracle of wisdom, experience. It at all times betrayed an 
ignorance of the true springs by which human conduct is actuat- 
ed, and belied the original inducements to the establishment of 
civil power. Why has government been instituted at all ? Be- 
cause the passions of men will not conform to the dictates of rea- 
son and justice, without constraint. Has it been found that bod- 
ies of men act, with more rectitude or greater disinteredness than 
individuals ? The contrary of this has been inferred by all accu- 
rate observers of the conduct of mankind ; and the inference is 
founded upon obvious reasons. Regard to reputation has a less 
active influence, when the infamy of a bad action is to be divid- 
ed among a number, than whon it is to fall singly upon one. A 
spirit of faction, which is apt to mingle its poison in the delibera- 
tions of all bodies of men, will often hurry the persons, of whom 



70 , THE FEDERALIST. 

they are composed, into improprieties and excesses, for which 
they would bUish in a private capacity. 

In addition to all this, there is, in the nature of sovereign power, 
an impatience of control, which disposes those who are invested 
with the exercise! of it, to look with an evil eye upon all external 
attempts to restrain or direct its operations. From this spirit it 
happens, that in every political association which is formed upon 
the principle of uniting in a common interest a number of lesser 
sovereignties, there will be found a kind of eccentric tendency in 
the subordinate or inferior orbs, by the operation of which there 
will be a perpetual effort in each to fly off from the common cen- 
ter. This tendency is not difficult to be accounted for. It has its 
origin in the love of power. Power controlled or abridged is al- 
most always the rival and enemy of that power by which it is con- 
trolled or abridged. This simple proposition will teach us, how 
little reason there is to expect, that the persons entrusted with the 
administration of the affairs of the particular members of a con- 
federacy, will at all times be ready with perfect good humor, and 
an unbiassed regard to the public weal, to execute the resolu- 
tions or decrees of the general authority. The reverse of this 
results from the constitution of man. 

If, therefore, the measures of the confederacy cannot be execut- 
ed, without the intervention of the particular administrations, there 
will be little prospect of their being executed at all. The rulers 
of the respective members, whether they have a constitutional right 
to do it or not, will undertake to judge of the propriety of the 
measures theraselveiS. They will consider the conformity of the 
thing proposed or required to their immediate interests or aims ; the 
momentary conveniences or inconveniences that would attend its 
adoption. All this will be done ; and in a spirit of interested and 
suspicious scrutiny, without that knowledge of national circum- 
stances and reasons of state, which is essential to a right judgment 
and with that strong predilection in favor of local objects, which 
can hardly fail to mislead the decision. The same process must 
be repeated in every member of which the body is constituted ; 
and the execution of the plans frariied by the councils of the 
whole will always fluctuate on the discretion of the ill-informed 
and prejudiced opinion of every part. Those who have been 
conversant in the proceedings of popular assemblies ; who have 
seen how difficult it often is, when there is no exterior pressure 
of circumstances, to bring them to harmonious resolutions on 
important points, will readily conceive how impossible it must be 
to induce a number of such assemblies, deliberating at a distance 
from each other, at different times, and under different impres- 
sions, long to cooperate in the same views and pursuits. 

In our case, the concurrence of thirteen distinct sovereign wills 
is requisite under the confederation, to the complete execution of 



THE FEDERALIST. 71 

every important measure, that proceeds from the union. It has 
happened, as was to have been foreseen. The measures of the 
union have not been executed; the- delinquencies of the states 
have, step by step, matured themselves to an extreme, which has 
at length arrested all the wheels of the national government, and 
brought them to an awful stand. Congress at this time scarcely 
possess the means of keeping up the forms of administration, till 
the states can have time to agree upon a more substantial substitute 
for the present shadow of a federal government. Things did not 
come to this desperate extremity at once. The causes which have 
been specified, produced at first only unequal and disproportionate 
degrees of compliance with the requisitions of the union. The 
greater deficiencies of some states furnished the pretext of exam- 
ple, and the temptation of interest to the complying, or at least de- 
linquent states. Why should we do more in proportion than those 
who are embarked with us in the same pohtical voyage ? Why 
should we consent to bear more than our proper share of the com- 
mon burthen ? These were suggestions which human selfishness 
could not withstand, and which even speculative men, who looked 
forward to remote consequences, could not, without hesitation, 
combat. Each state, yielding to the persuasive voice of immedi- 
ate interest or convenience, has successively withdrawn its sup- 
port, till the frail and tottering edifice seems ready to fall upon 
our heads, and to crush us beneath its ruins. PUBLIUS. 



BY ALEXANDER HAMILTON. 



THE SAME SUBJECT CONTINUED IN RELATION TO THE SAME PRINCIPLES. 

The tendency of the principle of legislation for states or com- 
munities in their political capacities, as it has been exemplified by 
the experiment we have made of it, is equally attested by the 
events which have befallen all other governments of the confede- 
rate kind, of which we have any account, in exact proportion to 
its prevalence in those systems. The confirmations of this fact 
will be worthy of a distinct and particular examination. I shall 
content myself with barely observing here, that of all the confed- 
eracies of antiquity which history has handed down to us, the 
Lycian and Achaean leagues, _as far as there remain vestiges of 
them, appear to have been most free from the fetters of that mis- 
taken principle, and were accordingly those which have best de- 
served, and have most liberally received, the applauding sulfrages 
of political writers. 



73 THE FEDERALIST. 

This exceptionable" principle may, as truly as emphatically, be 
styled the parent of anarchy ; it has been seen, that delinquencies 
in the members of the union are its natural and necessary off- 
spring ; and that whenever they happen, the only constitutional 
remedy is force, and the immediate effect of the use of it, civil war. 

It remains to inquire, how far so odious an engine of govern- 
ment, in its application to us would even be capable of answering 
its end. If there should not be a large army, constantly at the dis- 
posal of the national government, it would either not be able to 
employ force at all, or when this cbuld be done, it would amount 
to a war between different parts of the confederacy, concerning 
the infractions of a league : in which the strongest combination 
would be most likely to prevail, whether it consisted of those who 
supported, or of those who resisted, the general authority. It 
would rajrely happen that the delinquency to be redressed would 
be confined to a single member ; and if there were more than one, 
who had neglected their duty, similarity of situation would induce 
them to unite for common defence. Independent of this motive 
of sympathy, if a large and influential state should happen to be 
the aggressing member, it would commonly have weight enough 
with its neighbors, to win over some of them as associates to its 
cause. Specious arguments of danger to the general liberty could 
easily be contrived ; plausible excuses for the deficiencies of the 
party could, without difficulty, be invented, to alarm the apprehen- 
sions, inflame the passions, and conciliate the goodwill, even of 
those states which were not chargeable with any violation or omis- 
sion of dut3^ This would be the more likely to take place, as the 
delinquencies of the larger members might be expected sometimes 
to proceed from an ambitious premeditation in their rulers, with a 
view to getting rid of all external control upon their designs of 
personal aggrandizement; the better to effect which, it is presum- 
able they would tamper beforehand with leading individuals in the 
adjacent states. If associates could not be found at home, recourse 
would be had to the aid of foreign powers, who would seldom be 
disinclined to encouraging the dissensions of a confederacy, from 
the firm union of which they had so much to fear. When the 
sword is once drawn, the passions of men observe no bounds of 
moderation. The suggestions of wounded pride, the instigations 
of irritated resentment, would be apt to carry the states, against 
which the arms of the union were exerted, to any extremes 
necessary to avenge the affront, or to avoid the disgrace of sub- 
mission. The first war of this kind would probably terminate in 
a dissolution of the union. 

This may be considered as the viojent death of the confederacy. 
Its more natural death is what we now seem to be on the point of 
experiencing, if the federal system be not speedily renovated in a 
more substantial form. It is not probable, considering the genius 



THE FEDERALIST. 73 

of this country, that the complying states would often be inclined 
to support the authority of the union, by engaging in a war against 
the non-complying states. They would always be more ready to 
pursue the milder course of putting themselves upon an equal foot- 
ing with the delinquent members, by an imitation of their exam- 
ple. And the guilt of all would thus become the security of all. 
Our past experience has exhibited the operation of this spirit in its 
full light. There would in fact be an insuperable difficulty in as- 
certaining, when force could with propriety be employed. In the 
article of pecuniary contribution, which would be the most usual 
source of delinquency, it would often be impossible to decide, 
whether it had proceeded from disinclination or inability. The 
pretence of the latter would always be at hand. And the case 
must be very flagrant in which its fallacy could be detected with 
sufficient certainty to justify the harsh expedient of compulsion. 
It is easy to" see that this problem alone, as often as it should 
occur, would open a wide field to the majority that happened to 
prevail in the national council, for the exercise of factious views, 
of partiality, and of oppression. 

It seems to require no pains to prove that the states ought not to 
prefer a national constitution, which could only be kept in motion 
by the instrumentality of a large army, continually on foot to exe- 
cute the ordinary requisitions or decrees of the government. And 
yet this is the plain' alternative involved by those who wish to deny 
it the power of extending its operations to individuals. Such a 
scheme, if practicable at all, would instantly degenerate into a mil- 
itary despotism : but it will be found in every light impracticable. 
The resources of the union would not be equal to the maintenance 
of an army considerable enough to confine the larger states within 
the limits of their duty ; nor would the means ever be furnished of 
forming such an army in the first instance. Whoever considers 
the populousness and strength of several of these states singly at 
the present juncture, and looks forward to what they will become, 
even at the distance of half a century, will at once dismiss as idle 
and visionary any scheme, which aims at regulating their move- 
ments bylaws, to operate upon them in their collective capacities, 
and to be executed by a coercion applicable to them in the same 
capacities. A project of this kind is a little less romantic than the 
monster-taming spirit, attributed to the fabulous heroes and demi- 
gods of antiquity. 

Even in those confederacies, which have been composed of 
members smaller than many of our counties, the principle of leg- 
islation for sovereign states, supported by military coercion, has 
never been found effectual. It has rarely been attempted to be 
employed, but against the weaker members ; and in most instances 
attempts to coerce the refractory and disobedient, have been the 
10 



74 THE FEDERALIST. 

signals of bloody wars ; in which one half of the confederacy has 
displayed its banners against the other. 

The result of these observations to an intelligent mind must be 
clearly this, that if it be possible at any rate to construct a federal 
government capable of regulating the common concerns, the pre- 
serving the general tranquillity, it must be founded, as to the ob- 
jects committed to its care,. upon the reverse of the principle con- 
tended for by the opponents of the proposed constitution. It must 
carry its agency to the persons of the citizens. It must stand in 
need of no intermediate legislations ; but must itself be empow- 
ered to employ the arm of the ordinary magistrate to execute its 
own resolutions. The majesty of the national authority must be 
manifested through the medium of the courts of justice. The 
government of the union, like that of each state, must be able to 
address itself immediately to the hopes and fears of individuals; 
and to attract to its support those passions, which have the strongest 
influence upon the human heart. Jt must, in short, possess all the 
means, and have a right to resort to all the methods, of executing 
the powers with which it is entrusted, that are possessed and exer- 
cised by the governments of the particular states. 

To this reasoning it may perhaps be objected, that if any state 
should be disaffected to the authority of the union, it could, at any 
time obstruct the execution of its laws, and bring the matter to the 
same issue of force, with the necessity of which the opposite 
scheme is reproached. 

The plausibility of this objection will vanish the moment we ad- 
vert to the essential difference between a mere non-compliance 
and a dieect and active eesistance. If the interposition of the 
state legislatures be necessary to give effect to a measure of the 
union, they have only not to act, or to act evasively, and the 
measure is defeated. This neglect of duty may be disguised un- 
der affected but unsubstantial provisions so as not to appear, and of 
course not to excite any alarm in the people for the safety of the 
constitution. The state leaders may even make a merit of their 
surreptitious invasions of it on the ground of some temporary con- 
venience, exemption, or disadvantage. 

But if the execution of the laws of the national government 
should not require the intervention of the state legislatures ; if they 
were to pass into immediate operation upon the citizens themselves, 
the particular governments could not interrupt their progress with- 
out an open and violent exertion of an unconstitutional power. 
No omission, nor evasion, would answer the end. They would be 
obliged to act, and in such a manner, as would leave no doubt that 
they had encroached ' on the national rights. An experiment of 
this nature would always be hazardous in the face of a constitution 
in any degree competent to its own defence, and of a people en- 
lightened enough to distinguish between a legal exercise and anil- 



THE FEDERALIST. 75 

legal usurpation of authority. The success of it would require 
not merely a factious majority in the legislature, but the concur- 
rence of the courts of justice, and of the body of the people. If 
the judges were not embarked in a conspiracy with the legislature, 
they would pronounce the resolutions of such a majority to be 
contrary to the supreme law of the land, unconstitutional and 
void. If the people were not tainted with the spirit of their state 
representatives, they, as the natural guardians of the constitution, 
would throw their weight into the national scale, and give it a 
decided preponderancy in the contest. Attempts of this kind 
would not often be made with levity or rashness ; because they 
could seldom be made without danger to the authors ; unless in 
in cases of tyrannical exercise of the federal authority. 

If opposition to the national government should arise from the 
disorderly conduct of refractory or seditious individuals, it could 
be overcome by the same means which are daily employed against 
the same evil, under the state governments. The magistracy, 
being equally the ministers of the law of the land, from whatever 
source it might emanate, would doubtless be as ready to guard 
the national as the local regulations from the inroads of private 
licentiousness. As to those partial commotions and insurrections, 
which sometimes disquiet society, from the intrigues of an in- 
considerable faction, or from sudden or occasional ill-humors, that 
do not infect the great body of the community, the general gov- 
ernment could command more extensive resources, for the sup- 
pression of disturbances of that kind, than would be in the pow- 
er of any single member. And as to those mortal feuds, which, 
in certain conjunctures, spread a conflagration through the whole 
nation, or through a very large proportion of it, proceeding either 
from weighty causes of discontent, given by the government, or 
from the contagion of some violent popular paroxysm, they do 
not fall within any ordinary rules of calculation. When they 
happen, they commonly amount to revolutions, and dismember- 
ments of empire. No form of government can always either 
avoid or control them. It is in vain to hope to guard against 
events too mighty for human foresight or precaution ; and it 
would be idle to object to a government, because it could not 
perform impossibilities. PUBLIUS. 



76 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 

THE SUBJECT CONTINUED, AND ILLUSTRATED BY EXAMPLES, TO SHOW 
THE TENDENCY OF FEDERAL GOVERNMENTS, RATHER TO ANARCHY 
AMONG THE MEMBERS, THAN TO TYRANNY IN THE HEAD. 

An objection, of a nature different from that which has been 
stated and answered in my last address, may perhaps be urged 
against the principle of legislation for the individual citizens of 
America. It may be said, that it would tend to render the gov- 
ernment of the union too powerful, and to enable it to absorb 
those residuary authorities, which it might be judged proper to 
leave with the states for local purposes. Allowing the utmost lat- 
itude to the love of power, which any reasonable man can require, 
I confess I am at a loss to discover what temptation the persons 
entrusted with the administration of the general government, could 
ever feel to divest the states of the authorities of that description. 
The regulation of the mere domestic police of a state, appears to 
me to hold out slender allurements to ambition. Commerce, 
finance, negotiation and, war, seem to comprehend all the objects 
which have charms for minds governed by that passion ; and all 
the powers necessary to those objects, ought, in the first instance, 
to be lodged in the national depository. The administration of 
private justice between the citizens of the same state ; the super- 
vision of agriculture, and of other concerns of a similar nature ; all 
those things, in short, which are proper to be provided for by local 
legislation, can never be desirable cares of a general jurisdiction. 
It is therefore improbable, that there should exist a disposition in 
the federal councils, to usnrp the powers with which they are con- 
nected ; because the attempt to exercise them, would be as trouble- 
some as it would be nugatory ; and the possession of them, for 
that reason, would contribute nothing to the dignity, to the im- 
portance, or to the splendor, of the national government. 

But let it be admitted, for argument sake, that mere wantonness, 
and lust of domination, would be sufficient to beget that disposi- 
tion ; still it may be safely affirmed, that the sense of the constit- 
uent body of the national representatives, or, in other words, of the 
people of the several states, would control the indulgence of so 
extravagant an appetite. It will always be far more easy for the 
"State governments to encroach upon the national authorities, than 
for the national government to encroach upon the state authorities. 
The proof of this proposition turns upon the greater degree of in- 
fluence which the state governments, if they administer their 
affairs with uprightness and prudence, will generally possess over 
the people ; a circumstance which at the same time teaches us, that 



THE FEDERALIST. 77 

there is an inherent and intrinsic weakness in all federal constitu- 
tions ; and that too much pains cannot be taken in their organiza- 
tion, to give them all the force which is compatible with the 
principles of liberty. 

The superiority of influence in favor of the particular govern- 
ments, would result partly from the diffusive construction of the 
national government ; but chiefly from the nature of the objects to 
which the attention of the state administrations would be directed. 

It is a known fact in human nature, that its affections are com- 
monly weak" in proportion to the distance or diffusiveness of the 
object. Upon the same principle that a man is more attached to 
his family than to his neighborhood, to his neighborhood than to 
the community at large, the people of each state would be apt to 
feel a stronger bias towards their local governments, than towards 
the government of the union, unless the force of that principle 
should be destroyed by a much better administration of the latter. 

This strong propensity of the human heart, would find power- 
ful auxiliaries in the objects of state regulation. 

The variety of more minute interests, which will necessarily 
fall under the superintendence of the local administrations, and 
which will form so many rivulets of influence, running through 
every part of the society, cannot be particularized, without in- 
volving a detail too tedious and uninteresting to compensate for 
the instruction it might afford. 

There is one transcendent advantage belonging to the province 
of state governments, which alone suffices to place the matter in 
a clear and satisfactory light — I mean the ordinary administration 
of criminal and civil justice. This, of all others, is the most 
powerful, most universal, and most attractive source of popular 
obedience and attachment. It is this, which, being the immedi- 
ate and visible guardian of life and property ; having its benefits 
and its terrors in constant activity before the public eye ; regulating 
all those personal interests, and familiar concerns, to which the 
sensibility of individuals is more immediately awake ; contri- 
butes, more than any other circumstance, to impress upon the 
minds of the people affection, esteem, and reverence towards the 
government. This great cement of society, which will diffuse 
itself almost wholly through the channels of the particular govern- 
ments, independent of all other causes of influence, would ensure 
them so decided an empire over their respective citizens, as to 
render them at all times a complete counterpoise, and not un- 
frequent dangerous rivals to the power of the union. 

The operations of the national government, on the other hand, 
falling less immediately under the observation of the mass of the 
citizens, the benefits derived from it will chiefly be perceived, and 
attended to by speculative men. Relating to more general inter- 
ests, they will be less apt to come home to the feelings of the peo- 



78 THE FEDERALIST. . 

pie ; and, in proportion, less likely to inspire a habitual sense of 
obligation, and an active sentiment of attachment. 

The reasoning on this head has been abundantly exemplified 
by the experience of all federal constitutions with which we are 
acquainted, and of all others which have borne the least analogy 
to them. 

Though the ancient feudal systems were not, strictly speaking, 
confederacies, yet they partook of the nature of that species of 
association. There was a common head, chieftain, or sovereign, 
whose authority extended over the whole nation ; and a number of 
subordinate vassals or feudatories, who had large portions of land 
allotted to them, and numerous trains of inferior vassals or retain- 
ers, who occupied and cultivated that land upon the tenure of feal- 
ty, or obedience to the persons of whom they held it. Each prin- 
cipal vassal was a kind of sovereign within his particular demesne. 
The consequences of this situation were a continual opposition to 
the authority of the sovereign, and frequent wars between the 
great barons, or chief feudatories themselves. The power of the 
head of the nation was commonly too weak, either to preserve 
the public peace, or to protect the people against the oppressions 
of their immediate lords. This period of European ai^airs is 
emphatically styled by historians, the times of feudal anarchy. 

When the sovereign happened to be a man of vigorous and 
warlike temper and of superior abilities, he would acquire a per- 
sonal weight and influence, which answered for the time the pur- 
poses of a more regular authority. But in general the power of 
the barons triumphed over that of the prince ; and in many in- 
stances his dominion was entirely thrown off, and the great fiefs 
were erected into independent principalities or states. In those 
instances in which the monarch finally prevailed over his vassals, 
his success was chiefly owing to the tyranny of those vassals 
over their dependents. The barons, or nobles, equally the ene- 
mies of the sovereign and the oppressors of the common people, 
were dreaded and detested by both ; till mutual danger and 
mutual interest effected an union between them fatal to the power 
of the aristocracy. Had the nobles, by a conduct of clemency 
and justice, preserved the fidelity and devotion of their retainers 
and followers, the contests between them and the prince must 
almost always have "ended in their favor, and in the abridgement 
or subversion of the royal authority. 

This is not an assertion founded merely in speculation or con- 
jecture. Among other illustrations of its truth which might be cit- 
ed, Scotland will furnish a cogent example. The spirit of clanship 
which was at an early day introduced into that kingdom, uniting 
the nobles and their dependents, by ties equivalent to those of kin- 
dred, rendered the aristocracy a constant overmatch for the power 
of the monarch, till the incorporation with England subdued its 



THE FEDERALIST, 79 

fierce and ungovernable spirit, and reduced it within those rules of 
subordination, which a more rational and more energetic system 
of civil polity had previously established in the latter kingdom. 

The separate governments in a confederacy may aptly be com- 
pared with the feudal baronies ; with this advantage in their favor, 
that from the reasons already explained, they will generally possess . 
the confidence and goodwill of the people ; and with so important 
a support, will be able effectually to oppose all encroachments of 
the national government. It will be well, if they are not able to 
counteract its legitimate and necessary authority. The points of 
similitude consist in the rivalship of power, applicable to both, and 
in the concentration of large portions of the strength of the com- 
munity into particular depositories, in one case at the disposal of 
individuals, in the other case at the disposal of political bodies. 

A concise review of the events that have attended confederate 
governments, will further illustrate this important doctrine ; an 
inattention to which has been the great source of our political 
mistakes, and has given our jealousy a direction to the wrong 
side. This review shall form the subject of some ensuing papers, 

PUBLIUS, 



BY JAMES MADISON. 

THE SAME SUBJECT CONTINUED, WITH FURTHER EXAMPLES. 

Among the confederacies of antiquity, the most considerable 
was that of the Grecian republics, associated under the Amphyc- 
tionic council. From the best accounts transmitted of this 
celebrated institution, it bore a very instructive analogy to the 
present confederation of the American state. 

The members retained the character of independent and sove* 
reign states and had equal votes in the federal council. This 
council had a general authority to propose and resolve whatever 
it judged necessary for the common welfare of Greece ; to declare 
and carry on war ; to decide, in the last resort, all controversies 
between the members ; to fine the aggressing party; to employ the 

* The subject of this and the two following numbers happened to be taken up by 
both Mr. H. and Mr. M. What had been prepared by Mr. H. who had entered 
more briefly into the subject was left with Mr. M. on its appearing that the latter 
Was engaged in it wfth larger materials, and with a view to a more precise deline- 
ation ; and from the pen of the latter, the several papers went to the press. 

[The above note from the pen of Mr. Madison was ^oitten on the margin of .the 
leaf, commencing with the present number, in a copy of the Federalist loaned 
by him to the publisher.] 



80 THE FEDERALIST. 

whole force of the confederacy against the disobedient ; to admit 
new members. The Amphyctions were the guardians of rehg- 
ion, and the immense riches belonging to the temple of Delphos, 
where they had the right of jurisdiction in controversies between 
the inhabitants and those who came to consult the oracle. As a 
further provision for the efficacy of the federal powers, they took 
an oath mutually to defend and protect the united cities, to punish 
the violators of this oath, and to inflict vengeance on sacriligious 
despoilers of the temple. 

In theory, and upon paper, this apparatus of power seems am- 
ply sufficient for all general purposes. In several material instan- 
ces, they exceed the powers enumerated in the articles of confed- 
eration. The Amphyctiotns had in their hands the superstition of 
the times, one of the principal energies by which government was 
then maintained ; they had a declared authority to use coercion 
against refractory cities, and were bound by oath to exert this 
authority on the necessary occasions. 

Very different, nevertheless, was the experiment from the theo- 
ry. The powers, like those of the present congress, were adminis- 
tered by deputies appointed wholly by the cities in their political 
capacities ; and exercised over them in the same capacities. Hence 
the weakness, the disorders, and finally the destruction of the con- 
federacy. The more powerful members, instead of being kept in 
awe and subordination, tyrannized successively over all the rest. 
Athens, as we learn from Demosthenes, was the arbiter of Greece 
seventy-three years. The Lacedaemonians next governed it 
twenty-nine years. At a subsequent period, after the battle of 
Leuctra, the Thebans had their turn of domination. 

It happened but too often, according to Plutarch, that the dep- , 
uties of the strongest cities, awed and corrupted those of the 
weaker J and that judgment went in favor of the most powerful 
party. 

Even in the midst of defensive and dangerous wars with Persia 
and Macedon, the members never acted in concert, and were, 
more or fewer of them, eternally the dupes, or the hirelings of 
the common enemy. The intervals of foreign war, were filled 
up by domestic vicissitudes, convulsions, and carnage. 

After the conclusion of the war with Xerxes, it appears that the 
Lacedsemonians required that a number of the cities should be 
turned out of the confederacy for the unfaithful part they had act- 
ed. The Athenians, finding that the Lacedaemonians would lose 
fewer partizans by such a measure than themselves, and would 
become masters of the public deliberations, vigorously opposed and 
defeated the attempt. This piece of history proves at once th6 
inefficacy of the union ; the ambition and jealousy of its most pow- 
erful members ; and the dependent and degraded condition of the 
rest. The smaller members, though entitled by the theory of their 



THE FEDERALIST. 81 

system, to revolve in equal pride and majesty around the com- 
mon centre, had become in fact satellites of the orbs of primary 
magnitude. 

Had the Greeks, says the Abbe Milot. been as wise as they 
were courageous, they would have been admonished by experi- 
ence of the necessity of a closer union, and would have availed 
themselves of the peace which followed their success against the 
Persian arms to establish such a reformation. Instead of this ob- 
vious policy, Athens and Sparta, inflated with the victories and 
the glory they had acquired, became first rivals, and then enemies ; 
and did each other infinitely more mischief than they had sufier- 
ed from Xerxes. Their mutual jealousies, fears, hatreds, and in- 
juries ended in the celebrated Peloponnesian war : which itself 
ended in the ruin and slavery of the Athenians who had begun it. 

As a weak government, when not at war, is ever agitated by in- 
ternal dissensions ; so these never fail to bring on fresh calamities 
from abroad. The Phocians having ploughed up some consecrated 
ground belonging to the temple of Apollo, the Amphyctionic coun- 
cil, according to the supei-stition of, the age, imposed a fine on the 
sacrilegious ofl'enders. The Phocians being abetted by Athens and 
Sparta, refused to submit to .the decree. The Thebans, with others 
of the cities, undertook to maintain the authority of the Amphyc- 
tions, and to avenge the violated god. The latter, being the weak- 
er party, invited the assistance of Philip of Macedon, who had se- 
cretly fostered the contest. Philip gladly 'seized the opportunity 
of executing the designs he had long planned against the liberties 
of Greece. By his intrigues and bribes, he won over to his inter- 
ests the popular leadere of several cities ; by their influence and 
\"Otes, gained admission into the Amphyctionic council : and by 
his arts and his arms, made himself master of the confederacy. 

Such were the consequences of the fallacious principle, on 
which this interesting establishment was founded. Had Greece, 
says a judicious observer on her fate, been united by a stricter 
confederation, and persevered in her union, she would never have 
worn the chains of Macedon ; and might have proved a barrier 
to the vast projects of Rome. 

The Achaean league, as it is called, was another society of 
Grecian republics, which supplies us with valuable instruction. 

The union here was far more intimate, and its organization 
much wiser, than in the preceding instance. It will accordingly 
appear, that though not exempt from a similar catastrophe, it by 
no means equally deserved it. 

The cities composing this league retained their municipal juris- 
diction, appointed their own officers, and enjoyed a perfect equali- 
ty. The senate, in which they were represented, had the sole 
and exclusive right of peace and war ; of sending and receiving 
ambassadors ; of entering into treaties and alliances ; of appoint- 

11 



82 THE FEDERALIST. 

ing a chief magistrate or prator, as he was called ; who com- 
manded their armies ; and who, with the advice and consent of 
ten of the senators, not only administered the government in the 
recess of the senate, but had a great share in its deliberatiops, 
Vvrhen assembled. According to the primitive constitution, there 
were two praetors associated in the administration ; but on trial a 
single one was preferred. 

It appears that the cities had all the same laws and customs, the 
same weights and measures, and the same money. But how far this 
effect proceeded from the authority of the federal council, is left in 
uncertainty. It is said only, that the cities were in a manner com- 
pelled to receive the same laws and usages. When Lacedsemon 
was brought into the league by Philopoemen, it was attended with 
an abolition of the institutions and laws of Lycurgus, and an adop- 
tion of those of the Ach^ans. The Amphyctionic confederacy, 
of which she had been a member, left her in the full exercise of 
her government and her legislation. This circumstance alone 
proves a very material difference in the genius of the two systems. 

It is much to be regretted that such imperfect monuments re- 
main of this curious political fabric. Could its interior structure 
and regular operation be ascertained, it is probable that more light 
would be thrown by it on the science of federal government, than 
by any of the like experiments with which we are acquainted. 

One important fact seems to be witnessed by all the historians 
who take notice of Achsean affairs. It is, that as well after the 
renovation of the league by Aratus, as before its dissolution by 
the arts of Macedon, there was infinitely more of moderation and 
justice in the administration of its government, and less of vio- 
lence and sedition in the people, than were to be found in any of 
the cities exercising singly all the prerogatives of sovereignty. 
The Abbe Mably, in his observations on Greece, says, that the 
popular government, which was so tempestuous elsewhere, caused 
no disorders in the members of the Achasan republic, because it 
was there tenvpered hy the general authority and laws of the 
confederacy. 

We are not to conclude too hastily, however, that faction did 
not, in a certain degree, agitate the particular cities ; much less, 
that a due subordination and harmony reigned in the general sys- 
tem. The contrary is sufficiently displayed in the vicissitudes 
and fate of the republic. 

Whilst the Amphyctionic confederacy remained, that -of the 
Achceans, which comprehended the less important cities only, made 
little figure on the theatre of Greece. When the former became a 
victim to Macedon, the latter was spared by the policy of Philip 
and Alexander. Under the successors of these princes, however, 
a different policy prevailed. The arts of division were practiced 
among the Achseans ; each city was seduced into a separate inter- 



THE FEDERALIST. 83 

est ; the union was dissolved. Some of the cities fell under the 
tyranny of Macedonian garrisons : others under that of usurpers 
springing out of their own confusions. Shame and oppression 
ere long awakened their love of liberty, A few cities reunited. 
Their example was followed by others, as opportunities were found 
of cutting off their tyrants. The league soon embraced almost the 
whole Peloponnesus. Macedon saw its progress ; but was hinder- 
ed by internal dissensions from stopping it. All Greece caught the 
enthusiasm, and seemed ready to unite in one confederacy, when 
the jealousy and envy in Sparta and Athens, of the rising glory of 
the Acheeans, threw a fatal damp on the enterprise. The dread of 
the Macedonian power induced the league to court the alliance of 
the kings of Egypt and Syria ; who, as successors of Alexander, 
were rivals of the king of Macedon. This policy was defeated by 
Cleomenes, king of Sparta, who was led by his ambition to make 
an improvoked attack on his neighbors, the Achaeans ; and who, 
as an enemy to Macedon, had interest enough with the Egyptian 
and Syrian princes, to effect a breach of their engagements with 
the league. The Achaeans were now reduced to the dilemma of 
submitting to Cleomenes, or of supplicating the aid of Macedon, its 
former oppressor. The latter expedient was adopted* The con- 
test of the Greeks always afforded a pleasing opportunity to that 
powerful neighbor, of intermeddling in tjieir affairs. A Macedonian 
army quickly appeared : Cleomenes was vanquished. The Achae- 
ans soon experienced, as often happens, that a victorious and pow- 
erful ally, is but another name for a master. All that their most 
abject compliances could obtain from him, was a toleration, of the 
exercise of their laws. Philip, who was now on the throne of 
Macedon, soon provoked, by his tyrannies, fresh combinations 
among the Greeks. The Achaeans, though weakened by internal 
dissensions, and by the revolt of Messene, one of its members, be- 
ing joined by the ^tolians and Athenians, erected the standard of 
opposition. Finding themselves, though thus supported, unequal 
to the undertaking, they once more had recourse to the dangerous 
expedient of introducing the succor of foreign arms. The Ro- 
mans, to whom the invitation was made, eagerly embraced it. 
Philip was conquered : Macedon subdued. A new crisis ensued to 
the league. Dissensions broke out among its members. These the 
Romans fostered. Callicrates, and other popular leaders, became 
mercenary instruments for inveigling their countrymen. The more-' 
effectually to nourish discord and disorder, the Romans had, to the 
astonishment of those who confided in their sincerity, already pro- 
claimed universal liberty* throughout Greece. With the same in- 
sidious views, they now seduced the members from the league, by 
representing to their pride the violation it committed on their sove- 

* This was but^ another name more specious for the independeace of the mem- 
bers on the federal head. 



84 THE FEDERALIST. 

reignty. By these arts, this union, the last hope of Greece, the 
last hope of ancient liberty, was torn into pieces ; and such imbe- 
cility and distraction introduced, that the arms of Rome found lit- 
tle difficulty in completing the ruin which their arts had com- 
menced. The Achceans were cut to pieces ; and Achaia loaded 
with chains, under which it is groaning at this hour. 

I have thought it not superfluous to give the outlines of this im- 
portant portion of history ; both because it teaches more than one 
lesson ; and because as a supplement to the outlines of the Achaean 
constitution, it emphatically illustrates the tendency of federal bod- 
ies, rather to anarchy among the members, than to tyranny in the 
head. PUBLIUS. 



\ 



BY JAMES MADISON. 



THE SAME SUBJECT CONTINUED, WITH FURTHER EXAMPLES. 

The examples of ancient confederacies, cited in my last paper, 
have not exhausted the source of experimental instruction on this 
subject. There are existing institutions, founded on a similar prin- 
ciple, which merit particular consideration. The first which pre- 
sents itself is the Germanic body. 

In the early ages of Christianity, Germany was occupied by sev- 
en distinct nations, who had no common chief. The Franks, one 
of the number, having conquered the Gauls, established the king- 
dom which has taken its name from them. In the ninth century, 
Charlemagne, its warlike monarch, carried his victorious arms in 
every direction ; and Germany became a part of his vast dominions. 
On the dismemberment, which took place under his sons, this part 
was erected into a separate and independent empire. Charlemagne 
and his immediate descendants possessed the reality, as well as the 
ensigns and dignity of imperial power. But the principal vassals, 
whose fiefs had become hereditary, and who composed the national 
diets, which Charlemagne had not abolished, gradually threw off 
the yoke, and advanced to sovereign jurisdiction and independence. 
The force of imperial sovereignty was insufficient to restrain such 
powerful dependents; or to preserve the unity and tranquillity of 
the empire. The most furious private wars, accompanied with 
every species of calamity, were carried on between the different 
princes and states. The imperial authority, unable to maintain the 
public order, declined by degrees, till it was almost extinct in the 
anarchy, which, agitated the long interval between the death of the 
last emperOT of the Suabian, and the accession of the first emperor 



THE FEDERALIST. 85 

of the Austrian lines. In the eleventh century, the emperors 
enjoyed full sovereignty : in the fifteenth, they had little more 
than the symbols and decorations of power. , 

Out of this feudal system, which has itself many of the import- 
ant features of a confederacy, has grown the federal system, which 
constitutes the Germanic empire. Its powers are vested in a diet 
representing the component members of the confederacy ; in the 
emperor, who is the executive magistrate, with a negative on the 
decrees of the diet ; and in the imperial chamber and aulic coun- 
cil, two judiciary tribunals having supreme jurisdiction in contro- 
versies which concern the empire, or which happen among its' 
members. 

The diet possesses the general power of legislating for the em- 
pire ] of making war and peace ; contracting alliances ; assessing 
quotas of troops and money ; constructing fortresses ; regulating 
coin ; admitting new members ; and subjecting disobedient mem- 
bers to the ban of the empire, by which the party is degraded 
from his sovereign rights, and his possessions forfeited. The 
members of the confederacy are expressly restricted from enter- 
ing into compacts, prejudicial to the empire ; from imposing tolls 
and duties on their mutual intercourse, without the consent of 
the emperor and diet ; from altering the value of money ; from 
doing injustice to one another ; or from affording assistance or 
retreat to disturbers of the public peace. And the ban is de- 
nounced against such as shall violate any of these restrictions. 
The members of the diet, as such, are subject in all cases to be 
judged by the emperor and diet, and in their private capacities 
by the aulic council and imperial chamber. 

The prerogatives of the emperor are numerous. The most im- 
portant of them are, his exclusive right to make propositions to 
the diet ; to negative its resolutions ; to name ambassadors ; to 
confer dignities and titles ; to fill vacant electorates ; to found 
universities ; to grant privileges not injurious to the states of the 
empire ; to receive and apply the public revenues ; and generally 
to watch over the public safety. In certain cases, the electors 
form a council to him. In quality of emperor, he possesses no 
territory within the empire ; nor receives any revenue for his 
support. But his revenue and dominions, in other qualities, con- 
stitute him one of the most powerful princes in Europe. 

From such a parade of constitutional powers, in the representa- 
tives and head of this confederacy, the natural supposition would 
be, that it must form an exception to the general character which 
belongs to its kindred system. Nothing would be further from the 
reality. The fundamental principle, on which it rests, that the em- 
pire is a community of sovereigns ; that the diet is a represent- 
ation of sovereigns ; and that the laws are addressed to sove- 
reigns ; render the empire a nerveless body, incapable of regulat- 



86 THE FEDERALIST. 

ing its own members, insecure against external dangers, and agi- 
tated with unceasing fermentations in its own bowels. 

The history of Germany, is a history of wars between the em- 
peror and the princes and states ; of wars among the princes and 
states themselves ; of the licentiousness of the strong, and the op- 
pression of the weak; of foreign intrusions, and foreign intrigues; 
of requisitions of men and money disregarded, or partially com- 
plied with ; of attempts to enforce them, altogether abortive, or 
attended with slaughter and desolation, involving the innocent 
with the guilty ; of general imbecility, confusion and misery. 

In the sixteenth century, the emperor, with one part of the em- 
pire on his side, was seen engaged against the other princes and 
states. In one of the conflicts, the emperor himself was put to 
flight, and very near being made prisoner by the elector of Saxony. 
The late king of Prussia was more than once pitted against his 
imperial sovereign ; and commonly proved an overmatch for him. 
Controversies and wars among the members themselves, have 
been so common, that the German annals are crowded with the 
bloody pages which describe them. , Previous to the peace of 
Westphalia, Germany was desolated by a war of thirty years, in 
which the emperor, with one half of the empire, was on one side; 
and Sweden with the other half, on the opposite side. Peace 
was at length negotiated, and dictated by foreign powers ; and 
the articles of it, to which foreign powers are parties, made a 
fundamental part of the Germanic constitution. 

If the nation happens, on any emergency, to be more united by 
the necessity of self-defence, its situation is still deplorable. Mili- 
tary preparations must be preceded by so many tedious discussions, 
arising from the jealousies, pride, separate views, and clashing pre- 
tensions, of sovereign bodies, that before the diet can settle the ar- 
rangements, the enemy are in the field ; and before the federal 
troops are ready to take it, are retiring into winter quarters. 

The small body of national troops, which has been judged ne- 
cessary in time of peace, is defectively kept up, badly paid, in- 
fected with local prejudices, and supported by irregular and dis- 
proportionate contributions to the treasury. 

The impossibility of maintaining order, and dispensing justice 
among these sovereign subjects, produced the experiment of divid- 
ing the empire into nine or ten circles or districts ; of giving them 
an interior organization, and of charging them with the mihtary ex- 
ecution of the laws against delinquent and contumacious members. 
This experiment has only served to demonstrate more fully the 
radical vice of the constitution. Each circle is the miniature pic- 
ture of the deformities of this political monster. They either fail 
to execute their commissions, or they do it with all the devastation 
and carnage of civil war. Sometimes whole circles are defaulters ; 



THE FEDERALIST. 87 

and then they increase the mischief which they were instituted to 
remedy. 

We may form some ^^idgraent of this scheme of military 
coercion, from a sample given by Thnanus. In Donawerth, a 
free and imperial city of the circle of Suabia, the Abbe de St, 
Croix enjoyed certain immunities which had been reserved to 
him. In the exercise of these on some public occasions, outrages 
were committed on him, by the people of the city, The conse- 
quence was, that the city was put under the ban of the empire ; 
and the Duke of Bavaria, though director of another circle, ob- 
tained an appointment to enforce it. He soon appeared before 
the city, with a corps of ten thousand troops ; and finding it a 
fit occasion, as he had secretly intended from the beginning, to 
revive an antiquated claim, on the pretext that his ancestors had 
suffered the place to be dismembered from his territory ; * he 
took possession of it in his own name ; disarmed and punished 
the inhabitants and reannexed the city to his domains. 

It may be asked, perhaps, what has so long kept this disjointed 
machine from falling entirely to pieces? The answer is obvious. 
The Aveakness of most of the members, who are unwilling to 
expose themselves to the mercy of foreign powers ; the weakness 
of most of the principal members, compared with the formidable 
powers all around them ; the vast weight and influence which 
the emperor derives from his separate and hereditary dominions ] 
and the interest he feels in preserving a system with which his 
family pride is connected, and which constitutes him the first 
prince in Europe : these causes support a feeble and precarious 
union ; whilst the repellent quality, incident to the nature of 
sovereignty, and Avhich time continually strengthens, prevents 
any reform whatever, founded on a proper consolidation. Nor is 
it to be imagined, if this obstacle could be surmounted, that the 
neighboring powers would suffer a revolution to take place, 
which would give to the empire the force and preeminence to 
which it is entitled. Foreign nations have long considered 
themselves as interested in the changes made by events in this 
constitution ; and have, on various occasions, betrayed their 
policy of perpetuating its anarchy and weakness. 
' If more direct examples were wanting, Poland, as a govern- 
ment over local sovereigns, might not improperly be taken notice 
of. Nor could any proof, more striking, be given of the calami- 
ties flowing from such institutions. Equally unfit for self-gov- 
ernment and self-defence, it has long been at the mercy of its 
powerful neighbors ; who have lately had the mercy to disburden 
it of one third of its people and territories. 

* Pseflfel, Nouvel abreg. chronol. de 1' hist, etc, d' Allemagne, says, the pretext 
"was to indemnify himself for the expense of the expedition. 



88 THE FEDERALIST. 

The connexion among the Swiss cantons, scarcely amounts to 
a confederacy ; though it is sometimes^ cited as an instance of 
the stability of such institutions. 

They have no common treasury ; no common troops even in 
war ; no common coin ; no common judicatory, nor any other 
common mark of sovereignty. 

They are kept together by the peculiarity of their topographi- 
cal position; by their individual weakness and insignificancy; 
by the fear of powerful neighbors, to one of which they were 
formerly subject; by the few sources of contention among a 
people of such simple and homogeneous manners ; by their joint 
interest in their dependent possessions ; by the nautual aid they 
stand in need of for suppressing insurrections and rebellions; an 
aid expressly stipulated, and often required and afforded ; and by 
the necessity of some regular and permanent provision for ac- 
commodating disputes among the cantons. The provision is, 
that the parties at variance shall each choose four judges out of 
the neutral cantons, who, in case of disagreement, choose an 
umpire. This tribunal, under an oath of impartiality, pronoun- 
ces definitive sentence, which all the cantons arq bound to en- 
force. The competency of this regulation may be estimated by 
a clause, in their treaty of 1683, with Victor Amadeus of Savoy; 
in which he obliges himself to interpose as mediator in disputes 
between the cantons ; and to employ force, if necessary, against 
the contumacious party. 

So far as the peculiarity of their case will admit of comparison 
with that of the United States, it serves to confirm the principle 
intended to be established. Whatever efficacy the union may have 
had in ordinary cases, it appears that the moment a cause of differ- 
ence sprung up, capable of trying its strength, it failed. The con- 
troversies on the subject of religion, whii^h in three instances have 
kindled violent and bloody contests, may be said in fact to have 
severed the league. The Protestant and Catholic cantons, have 
since had their separate diets ; where all the most important con- 
cerns are adjusted, and which have left the general diet little 
other business than to take care of the common bailages. 

That separation had another consequence, which merits atten- 
tion. It produced opposite alliances v/ith foreign powers : of 
Berne, as the head of the Protestant association, with the United 
Provinces ; and of Luzerne, as the head of the Catholic associa- 
tion, with France. PUBLIUS. 



THE FEDERALIST. 89 

BY JAMES MADISON. 
THE SAME SUBJECT CONTINUED WITH FURTHER EXAMPLES. 

The United Netherlands are a confederacy of republics or rath- 
er of aristocracies of a very remarkable texture ; yet confirming all 
the lessons derived from those which we have already reviewed. 

The union is composed of seven coequal and sovereign states, 
and each state or province is a composition of equal and inde- 
pendent cities. In all important cases, not only the provinces, 
but the cities must be unanimous. 

The sovereignty of the union is represented by the states gene- 
ral, consisting usually of about fifty deputies appointed by the 
provinces. They hold their seats, some for life, some for six, 
three and one years. ■ From 'two provinces they continue in ap- 
pointment during pleasure. 

The states-general have authority to enter into treaties and alli- 
ances ; ' to make war and peace ; to raise armies and equip fleets j 
to ascertain quotas and demand contributions. In all these cases, 
however, unanimity and the sanction of their constituents are re- 
quisite. They have authority to appoint and receive ambassa- 
dors ; to execute treaties and alliances already formed ; to provide 
for the collection of duties on imports and exports ; to regulate 
the mint, with a saving to the provincial rights ; to govern as 
sovereigns the independent territories. The provinces are restrain- 
ed, unless with the general consent, from entering into foreign 
treaties ; from establishing imposts injurious to others, or charg- 
ing their neighbors with higher duties than their own subjects. 
A council of state, chamber of accounts, with five colleges of 
admiralty aid and fortify the federal administration. 

The executive magistrate of the union is the stadtholder, who 
is now a hereditary prince. His principal weight and influence 
in the republic are derived from his independent title ; from his 
great patrimonial estates ; from his family connexions with some 
of the chief potentates of Europe ; and more than all, perhaps, 
from his being stadtholder in the several provinces, as well as for 
the union ; in which provincial quality, he has the appointment 
of town magistrates under certain regulations, executes provincial 
decrees, presides when he pleases in the provincial tribunals ; and 
has throughout the power of pardon. 

As stadtholder of the union, he has however considerable pre- 
rogatives. 

In his political capacity, he has authority to settle disputes 
between the provinces, when other methods fail ; to assist at the 
deliberations of the states-general, and at their particular confer- 
ences; to give audiences to foreign ambassadors, and to keep 
agents for his particular affairs at foreign courts. 

12 



90^ THE FEDERALIST. 

In his military capacity, he commands the federal troops ; pro- 
vides for garrisons, and in general regulates military affairs ; dis- 
poses of all appointments, from colonels to ensigns, and of the 
governments and posts of fortified towns. 

In his marine capacity, he is admiral-general, and superintends 
and directs every thing relative to naval forces, and other naval 
affairs ; presides in the admiralties in person or by proxy ; appoints 
lieutenant-admirals and other officers ; and establishes councils 
of war, whose sentences are not executed till he approves them. 

His revenue, exclusive of his private income, amounts to three 
hundred thousand florins. The standing army which he com- 
mands consists of about forty thousand men. 

Such is the nature of the celebrated Belgic confederacy, as de- 
lineated on parchment. What are the characters which practice 
has stamped upon it? Imbecility in the government; discord 
among the provinces ; foreign influence and indignities j a pre- 
carious existence in peace, and peculiar calamities from war. 

It was long ago remarked by Grotius, that nothing but the 
hatred of his countrymen to the house of Austria, kept them 
from being ruined by the vices of their constitution. 

The union of Utrecht, says another respectable writer, reposes 
an authority in the states-general, seemingly sufficient to secure 
harmony ; but the jealousy in each province renders the practice 
very different from the theory. 

The same instrument, says another, obliges each province to 
levy certain contributions ; but this article never could, and prob- 
ably never will, be executed ; because the inland provinces, who 
have little commerce, cannot pay an equal quota. 

In matters of contribution, it is the practice to waive the arti- 
cles of the constitution. The danger of delay obliges the con- 
senting provinces to furnish their quotas, without waiting for the 
others ; and then to obtain reimbursement from the others, by 
deputations, which are frequent, or otherwise, as they can. The 
great wealth and influence of the province of Holland,' enable her 
to effect both these purposes. 

It has more than once happened, that the deficiences have been 
ultimately to be collected at the point of the bayonet ; a thing 
practicable, though dreadful, in a confederacy, where one of the 
members exceeds in force, all the rest ; and where several of 
them are too small to meditate resistance ; but utterly impracti- 
cable in one composed of members, several of which are equal 
to each other in strength and resources, and equal singly to a 
vigorous and persevering defence. 

Foreign ministers, says sir William Temple, who was himself a 
foreign minister, elude matters taken ad 'referendum^ by tampering 
with the provinces and cities. In 1726, the treaty of Hanover 



THE FEDERALIST. 91 

was delayed by these means a whole year. Instances of a like 
nature are numerous and notorious. 

In critical emergencies, the states-general are often compelled to 
overleap their constitutional bounds. In 1688, they concluded a 
treaty of themselves at the risk of their heads. The treaty of 
Westphalia in 1648, by which their independence was formally and 
finally recognized, was concluded without the consent of Zealand. 
Even as recently as the last treaty of peace with Great Britain, the 
constitutional principle of unanimity was departed from, A weak 
constitution must necessarily terminate in dissolution, for want of 
proper powers, or the usurpation of powers requisite for the public 
safety. Whether the usurpation, when once begun, will stop at 
the salutary point, or go forward to the dangerous extreme, must 
depend on the contingencies of the moment. Tyranny has per- 
haps oftener grown out of the assumptions of power, called for, on 
pressing exigencies, by a defective constitution, than out of the 
full exercise of the largest constitutional authorities. 

Notwithstanding the calamities produced by the stadtholdership, 
it has been supposed, that without his influence in the individual 
provinces, the causes of anarchy manifest in the confederacy, would 
long ago have dissolved it, " Under such a government," says the 
Abbe Mably, " the union could never have subsisted, if the provin- 
" ces had not a spring within themselves, capable of quickening 
" their tardiness, and compelling them to the same way of think- 
" ing. This spring is the stadtholder." It is remarked by sir 
William Temple, '■ that in the intermissions of the stadtholder- 
" ship, Holland, by her riches and her authority, which drew, the 
" others into a sort of dependence, supplied the place." 

These are not the only circumstances which have controlled the 
tendency to anarchy and dissolution. The surrounding powers 
impose an absolute necessity of union to a certain degree, at the 
same time that they nourish, by their intrigues the constitutional 
vices, which keep the republic in some degree always at their 
mercy. 

The true patriots have long bewailed the fatal tendency of these 
vices, and have made no less than four regular experiments by ex- 
traordinary assemblies^ convened for the special purpose, to apply 
a remedy. As many times has their laudable zeal found it impossi- 
ble to unite the public councils in reforming the known, the ac- 
knowledged, the fatal evils of the existing constitution. Let us 
pause, my fellow-citizens, for one moment, over this melancholy 
and monitory lesson of history ; and with the tear that drops for 
the calamities brought on mankind by their adverse opinions and 
selfish passions, let our gratitude mingle an ejaculation to Heaven, 
for the propitious concord which has distinguished the consulta- 
tions for our political happiness, 

A design was also conceived of establishing a general tax to be 



93 THE FEDERALIST. 

administered by the federal authority. This also had its adversa- 
ries and failed. 

This unhappy people seem to be now suffering, from popular 
convulsions, from dissensions among the states, and from the actual 
invasion of foreign arms, the crisis of their destiny. All nations 
have their eyes fixed on the awful spectacle. The first wish 
prompted by humanity is, that this severe trial may issue in such 
a revolution of their government, as will establish their union, and 
render it the parent of tranquillity, freedom and happiness : the 
next that the asylum under which, we trust, the enjoyment of 
these blessings will speedily be secured in this country, msij re- 
ceive and console them for the catastrophe of their own. 

I make no apology for having dwelt so long on the contempla- 
tion of these federal precedents. Experience is the oracle of 
truth ; and where its responses are unequivocal, they ought to be 
conclusive and sacred. The important truth, which it unequivo- 
cally pronounces in the present case, is that a sovereignty over 
sovereigns, a government over governments, a legislation for com- 
munities, as contradistinguished from individuals ; as it is a sole- 
cism in theory, so in practice, it is subversive of the order and 
ends of civil polity, by substituting violence in place of law, or 
the destructive coercion of the swor^d, in place of the mild and 
salutary coercion of the magistracy. PUBLIUS. 



BY ALEXANDER HAMILTON. 

FURTHER DEFECTS OF THE PRESENT CONSTITUTION. 

Having in the three last numbers taken a summary review of 
the principal circumstances and events, which depict the genius 
and fate of other confederate governments ; I shall now proceed 
in the enumeration of the most important of those defects, which 
have hitherto disappointed our hopes from the system established 
among ourselves. To form a safe and satisfactory judgment of 
the proper remedy, it is absolutely necessary that we should be 
well acquainted with the ex:tent and malignity of the disease. 

The next most palpable defect of the existing confederation, is 
the total want of a sanction to its laws. The United States, as 
now composed, have no power to exact obedience, or punish diso- 
bedience to their resolutions, either by pecuniary mulcts, by a sus- 
pension or divestiture of privileges, or by any other constitutional 
meanfe. There is no express delegation of authority to them to use 
force against delinquent members ; and if such a right should be 



THE FEDERALIST. 93 

ascribed to the federal head, as resulting from the nature of the so- 
cial compact between the states, it must be Jjy inference and con- 
struction, in the face of that part of the second article, by which 
it is declared, ''that each state shall retain every power, jurisdic- 
" tion and right, not expressly delegated to the United States in 
'• congress assembled." The want of such a right involves, no 
doubt, a striking absurdity ; but we are reduced to the dilemma 
either of supposing that deficiency, preposterous as it may seem, or 
of contravening or explaining away a provision, which has been of 
late a repeated theme of the eulogies of those who oppose the new 
constitution ; and the omission of which, in that plan, has been the 
subject of much plausible animadversion, and severe criticism. If 
we are unwilling to impair the force of this applauded prov^ion, 
we shall be obliged to conclude, that the United States afford the 
extraordinary spectacle of a government, destitute even of the 
shadow of constitutional power, to enforce the execution of its 
own laws. It will appear, from the specimens which have been 
cited, that the American confederacy, in this particular, stands dis- 
criminated from every other institution of a similar kind, and ex- 
hibits a new and unexampled phenomenon in the political world. 

The want of a mutual guaranty of the state governments, is an- 
other capital imperfection in the federal plan. There is nothing of 
this kind declared in the al-ticles that compose it ; and to imply 
a tacit guaranty from considerations of utility, would be a still 
rnore flagrant departure from the clause which has been mention- 
ed than to imply a tacit power of coercion, from, the like consid- 
eration. The want of a guaranty, though it might in its conse- 
quences endanger the union, does not so immediately attack its 
existence, as the want of a constitutional sanction to its laws. 

Without a guaranty, the assistance to be derived from the union 
in repelling those domestic dangers, which may sometimes threat- 
en the existence of the state constitutions, must be renounced. 
Usurpation may rear its crest in each state, and trample upon the 
liberties of the people ; while the national government could le- 
gally do nothing more than behold its encroachments with indigna- 
tion and regret. A successful faction may erect a tyranny on the 
ruins of order and law ; while no succor could constitutionally be 
afforded by the union to the friends and supporters of the govern- 
ment. The tempestuous situation from which Massachusetts has 
scarcely emerged, evinces, that dangers of this kind are not merely 
speculative. Who can determine, what might have been the issue 
of her late convulsions, if the malcontents had been headed by a 
Csesar or by a Cromwell ? Who can predict, what effect a despot- 
ism, established in Massachusetts, would have upon the liberties of 
New Hampshire or Rhode Island ; of Connecticut or New York ? 

The inordinate pride of state importance has suggested to some 
minds an objection to the principle of a guaranty in the federal 



94 THE FEDERALIST. 

government, as involving an officious interference in the domestic 
concerns of the memjDers. A scruple of this kind would deprive 
us of one of the principal advantages to be expected from union ; 
and can only flow from a misapprehension of the nature of the 
provision itself. It could be no impediment to reforms of the state 
constitutions by a majority of the people, in a legal and peaceable 
mode. ' This right would remain undiminished. The guaranty 
could only operate against changes to be effected by violence. 
Towards the prevention of calamities of this kind, too many 
checks cannot be provided. The peace of society, and the stabil- 
ity of government, depend absolutely on the efficacy of precau- 
tions adopted on this head. Where the whole power of the govern- 
mer^l is in the hands of the people, there is the less pretence for 
the use of violent remedies, in partial or occasional distempers of 
the state. The natural cure for an ill-administration, in a pop- 
ular or representative constitution, is a change of men. A guar- 
anty by the national authority, would be as much directed 
against the usurpations of rulers, as against the ferments and oiat- 
rages of faction and sedition in the community. 

The principle of regulating the contributions of the states to the 
common treasury by quotas, is another fundamental error in the 
confederation. Its repugnancy to an adequate supply of the na- 
tional exigencies, has been already pointed out, and has sufficient- 
ly appeared from the trial which has been made of it. I speak of 
it now solely with a view to equality among the states. Those 
who have been accustomed to contemplate the circumstances, 
which produce and constitute national wealth, must be satisfied 
that there is no common standard or barometer, by which the de- 
grees of it can be ascertained. Neither the value of lands, nor 
the numbers of the people, which have been successively proposed 
as the rule of state contributions, has any pretension to being a 
just representative. If we compare the wealth of the United 
Netherlands with that of Russia or Germany, or even of France ; 
and if we at the same time compare the total value of the lands, 
and the aggregate population of the contracted territory of that 
republic, with the total value of the lands, and the aggregate pop- 
ulation of the immense regions of either of those kingdoms, we 
shall at once discover, that there is no comparison between the pro- 
portion of either of these two objects, and that of the relative 
weahh of those nations. If the like parallel were, to be run be- 
tween several of the American states, it would furnish a like result. 
Let Yirginia be contrasted with North Carolina, Pennsylvania with 
Connecticut, or Maryland with New Jersey, and we shall be con- 
vinced that the respective abilities of those states, in relation to 
revenue, bear little or no analogy to their comparative stock in 
lands or to their comparative population. The position may be 
equally illustrated by a similar process between the counties of the 



THE FEDERALIST. 93 

same state. No man acquainted with the state of New York 
will doubt that the active wealth of King's county bears a much 
greater proportion to that of Montgomery, than it would appear 
to do, if we should take either the total value of the lands, or 
the total numbers of the people, as a criterion. 

The wealth of nations depends upon an infinite variety of 
causes. Situation, soil, climate, the nature of the productions, 
the nature of the government, the genius of the citizens ; the 
degree of information they possess ; the state of commerce, of arts, 
of industry ; these circumstances, and many more, too complex, 
minute, or adventitious, to admit of a particular specification, 
occasion differences hardly conceivable in the relative opulence 
and riches of different countries. The consequence clearly is, 
that there can be no common measure of national wealth ; and, 
of course, no general or stationary rule, by which the abilitf' of 
a state to pay taxes can be determined. The attempt, therefore, 
to regulate the contributions of the members of a confederacy, 
by any such rule, cannot fail to be productive of glaring inequal- 
ity and extreme oppression. 

This inequality would of itself be sufficient in America to 
work the eventual destruction of the union, if any mode of en- 
forcing a compliance with its requisitions could be devised. The 
suffering states would not long consent to remain associated upon 
a principle which distributed the public burthens with so unequal 
a hand ; and which was calculated to impoverish and oppress the 
citizens of some states, while those of others would scarcely be 
conscious of the small proportion of the weight they were re- 
quired to sustain. This, however, is an evil inseparable from 
the principle of quotas and requisitions. 

There is no method of steering clear of this inconvenience, 
but by authorizing the national government to raise its own rev- 
enues in its own way. Imposts, excises, and in general all 
duties upon articles of consumption, may be compared to a fluid, 
which will in time find its level with the means of paying them. 
The amount to be contributed by each citizen will in a degree 
be at his own option, and can be regulated by ari attention to his 
resources. The rich may be extravagant — the poor can be 
frugal ; and private oppression may always be avoided, by a 
judicious selection of objects proper for such impositions. If 
inequalities should arise in some states from duties on particular 
objects, these will, in all probability, be counterbalanced by pro- 
portional inequalities in other states, from the duties on other 
objects. In the course of time and things, an equilibrium, as far 
as it is attainable in so complicated a subject, will be established 
everywhere. Or, if inequalities should still exist, they would 
neither be so great in their degree, so uniform in their operation, 
nor so odious in their appearance, as those which would npces- 



96 THE FEDERALIST. 

sarily spring from quotas, upon any scale that can 'possibly be 
devised. 

It is a signal advantage of taxes on articles of consumption, 
that they contain in their own nature a security against excess. 
They prescribe their own limit ; which cannot be exceeded with- 
out defeating the end proposed — that is, an extension of the rev- 
enue. When applied to this object, the saying is as just as it is 
■witty, that "in political arithmetic, two and two do not always make 
four." If duties are too high, they lessen the consumption ; the 
collection is eluded ; and the product to the treasury is not, so great 
as when they are confined within proper and moderate bounds. 

This forms a complete barrier against any material oppression 
of the citizens, by taxes of this class, and is itself a natural lim- 
itation of the power of imposing them. 

Impositions of this kind usually fall under the denomination of in- 
direct taxes, and must for a long time constitute the chief part of the 
revenue raised in this country. Those of the direct kind, which 
principally relate to lands and buildings, may admit of a rule of ap- 
portionment. Either the value of land, or the number of the peo- 
ple may serve as a standard. The state of agriculture, and the pop- 
ulousness of a country, are considered as having a near relation to 
each other. And as a rule for the purpose intended, numbers in the 
view of simplicity and certainty, are entitled to a preference. In ev- 
ery country it is a Herculean task to obtain a valuation of the land : 
in a country imperfectly settled and progressive in improvement, 
the difficulties are increased almost to impracticability. The ex- 
pense of an accurate valuation, is in all situations a formidable 
objection. In a branch o^ taxation where no limits to the dis- 
cretion of the government are to be found in the nature of the 
thing, the establishment of a fixed rule, not incompatible with the 
end, may be attended with fewer inconveniences than to leave 
that discretion altogether at large. PUBLIUS. 



BY ALEXANDER HAMILTON. 
THE SAME SUBJECT CONTINUED AND CONCLUDED. 

In addition to the defects of the existing federal system enum- 
erated in the last number, there are others of not less importance, 
which concur in rendering that system altogether unfit for the 
administration of the affairs of the union. 

The want of a power to regulate commerce, is by all parties al- 



THE FEDERALIST. 97 

lowed to be of the number. The utility of such a power has been 
anticipated under the first head of our inquiries ; and for this rea- 
son, as well as from the universal conviction entertained upon the 
subject, little need be added in this place. It is indeed evident, 
on the most superficial view, that there is no object, either as it re- 
spects the interests of trade or finance, that more strongly demands 
a federal superintendence. The want of it has already operated 
as a bar to the formation of beneficial treaties with foreign powers ; 
and has given occasion of dissatisfaction between the states. No 
nation acquainted with the nature of our political association, 
would be unwise enough to enter into stipulations with the United 
States, conceding on their part privileges of importance, while they 
were apprized that the engagements on the part of the union, 
might at any moment be violated by its members ; and while they 
found from experience that they might enjoy every advantage 
they desired in our markets, without granting us any return, but 
such as their momentary convenience might suggest. It is not 
therefore, to be wondered 'at, that Mr. Jenkinson, in ushering into 
the house of commons a bill for regulating the temporary inter- 
course between the two countries, should preface its introduction 
by a declaration, that similar provisions in former bills had been 
found to answer every purpose to the commerce of Great Britain, 
and that it would be prudent to persist in the plan until it should 
appear whether the American government was likely or not to ac- 
quire greater consistency.* 

Several states have endeavored, by separate prohibitions, restric- 
tions, and exclusions, to influence the conduct of that kingdom in 
this particular ; but the want of concert, arising from the want of 
a general authority, and from clasning and dissimilar views in the 
states, has hitherto frustrated every experiment of the kind ; and 
will continue to do so, as long as the same obstacles to an uniform- 
ity of measures continue to exist. 

The interfering and unneighborly regulations of some states, 
■contrary to the true spitit of the union, have, in different instances 
given just cause of umbrage and complaint to others ; and it is to 
be feared that examples of this nature, if not restrained by a na- 
tional control, would be multiplied and extended till they become 
not less serious sources of animosity and discord, than injurious im- 
pediments to the intercourse between the different parts of the 
confederacy. "The commerce of the German empiref is in con- 
" tinual trammels, from the multiplicity of the duties ^which the 
*' several princes and states exact upon the merchandizes passing 
" through their territories ; by means of which the fine streams and 
" navigable rivers with Avhich Germany is so happily watered, are 

* This, as nearly as I can recollect, was the sense of his speech on introducing 
the last bill. 

t Encyclopeedia, article Empire. 

13 ♦ 



98 THE FEDERALIST. 

"rendered almost useless." Though the genius of the people of 
this country might never permit this description to be strictly 
applicable to us, yet we may reasonably expect from the gradual 
conflicts of state regtilations, that the citizens of each would at 
length come to be considered and treated by the others in no bet- 
ter light than that of foreigners and aliens. 

The power of raising armies, by the most obvious construction 
of the articles of the confederation, is merely a power of making 
requisitions upon the states for quotas of men. This practice, in 
the course of the late war, was found replete with obstructiojs to 
a vigorous, and to an economical system of defence. It gave birth 
to a competition between the states, which created a kind of auc- 
tion for men. In order to furnish the quotas required of them, 
they outbid each other, till bounties grew to an enormous and in- 
supportable size. The hope of a still further increase, afforded an 
inducement to those who were disposed to serve, to i)rociastinate 
their enlistment ; and disinclined them from engaging for any con- 
siderable periods. Hence, slow and scanty levies of men, in the 
most critical emergencies of our affairs ; short enlistments at an 
unparalleled expense | continual fluctuations in the troops, ruinous 
to their discipline, and subjecting the public safety frequently to 
the perilous crisis of a disbanded army. Hence also, those oppres- 
sive expedients for raising men, which were upon several occasions 
practiced, and which nothing but the enthusiasm of liberty would 
have induced the people to endure. 

This method of raising troops is not more unfriendly to economy 
and vigor than it is to an equal distribution of the burthen. The 
states near the seat of war, influenced by motives of self-preser^va- 
tion, made efforts to fiumish their quotas, which even exceeded 
their abilities ; while those at a distance from danger were, for the 
most part, as remiss as the others were diligent, in their exertions. 
The immediate pressure of this inequality was not in this case, as 
in that of the contributions of money, alleviated by the hqpe of a 
final liquidation. The states which did not pay their proportions 
of money, might at least be charged with their deficiencies ; but 
no account could be formed of the deficiencies in the supplies of 
men. We shall not, however, see much reason to regret the want 
of this hope, when we consider how little prospect there is, that 
the most delinquent states ever will be able to make compensaiion 
for their pecuniary failures. Th^e system of quotas and requisitions, 
whether it be applied to men or money, is, in every view, a system 
of imbecility in the union, and of inequality and injustice among 
the members. 

The right of equal suffrage among the states, is another excep- 
tionable part of the confederation. Every idea of proportion, and 
every rule of fair representation, conspire to condemn a principle, 
which gives to Rhode Island an equal weight in the scale of power 



THE FEDERALIST. 99 

with Massachusetts or Connecticut, or New York ; and to Dela- 
ware an equal voice in the national deliberations with Pennsylva- 
nia, or Virginia, or North Carolina. Its operation contradicts that 
fundamental maxim of republican government, which requires that 
the sense of the majorit}'' should prevail. Sophistry may reply, 
that sovereigns are equal, and that a majority of the votes of the 
states will be a majority of confederated America. But this kind 
of logical legerdemain will never counteract the plain suggestions 
of justice and common sense. It may happen that this majority 
of states is a small minority of the people of America ;* and two 
thirds of the people of America could not long be persuaded, upon 
the credit of artificial distinctions and syllogistic subtleties, to sub- 
mit their interests to the management and disposal of one third. 
The larger states would after a while revolt from the idea of re- 
ceiving the law from the smaller. To acquiesce in such a priva- 
tion of their due importance in the political scale, would be not 
merely to be insensible to the love of power, but even to sacri- 
fice the desire of equality. It is neither rational to expect the 
first, nor just to require the last. Considering how peculiarly 
the safety and welfare of the smaller states depend on union, 
they ought readily to renounce a pretension, which, if not relin- 
quished, would prove fatal to its duration. 

It may be objected to this, that not seven but nine states, or 
two thirds of the whole number, must consent to the most import- 
ant resolutions ; and it may be thence inferred, that nine states 
wouldv always comprehend a majority of the inhabitants of the 
union. But this does not obviate the impropriety of an equal vote, 
between states of the most unequal dimensions and populousness : 
nor is the inference accurate in point of fact ; for we can enumer- 
ate nine states, which contain less than a majority of the people ;f 
and it is constitutionally possible, that these nine may give the vote. 
Besides, there are matters of considerable moment determinable 
by a bare majority: and there are others, conceriiing which doubts 
have been entertained, which, if interpreted in favor of the suffi- 
ciency of a vote of seven states, would extend its operation to 
interests of the first magnitude. In addition to this, it is to be 
observed, that there is a probability of an increase in the number 
of states, and no provision for a proportional augmentation of 
the ratio of votes. 

But this is not all : what at first sight, may seem a remedy, is, 
in reality, a poison. To give a minority a negative upon the ma- 
jority, which is always the case where more than a majority is re- 

* New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Caro- 
iina, and Maryland, are a majority of the whole number of the states, but they do 
not contain one third of the people. 

t Add New York and Connecticut to the foregoing seven, and they will still be 
less than a majority. 



100 THE FEDERALIST. 

quisite to a decision, is, in its tendency, to subject the sense of the 
greater number to that of the lesser. Congress, from the non-at- 
tendance of a few states, have been frequently in the situation of 
a Polish diet where a single veto has been sufficient to put a stop 
to all their movements. A sixtieth part of the union, which is 
about the proportion of Delaware and Rhode Island, has several 
times been able to oppose an entire bar to its operations. This is 
one of those refinements, which, in practice, has an effect the re- 
verse of what is expected from it in theory. The necessity of 
unanimity iti public bodies, or of something approaching towards 
it, has been founded upon a supposition that it would contribute to 
security. But its real operation is to embarrass the administration, 
to destroy the energy of government, and to substitute the pleasure, 
caprice, or artifices of an insignificant, turbulent, or corrupt junto, 
to the regular deliberations and decisions of a respectai<le majority. 
In those emergencies of a nation, in which the goodness or bad- 
ness, the weakness or strength of its government, is of the great- 
est importance, there is commonly a necessity for action. The 
public business must, in some way or other, go forward'. If a per- 
tinacious minority can control the opinion of a majority, respect- 
ing the best mode of conducting it, the majority, in order that 
something may be done, must conform to the views of the minor- 
ity ; and thus the sense of the smaller number will overrule that of 
the greater, and give a tone to the national proceedings. Hence, 
tedious delays ; continual negotiation and intrigue ; contemptible 
compromises of the public good. And yet, in such a system, it 
is even fortunate "when such compromises can take place: for 
upon some occasions, things will not admit of accommodation ; 
and then, the measures of government must be injuriously 
suspended, or fatally defeated. It is often, by the impractica- 
bility of obtaining the concurrence of the necessary number of 
votes, kept in a state of inaction. Its situation must always 
savor of weakness ; sometimes border upon anarchy. 

It is not difficult to discover, that a principle of this kind gives 
greater scope to foreign corruption, as well as to domestic faction, 
than that which permits the sense of the majority to decide ; tljough 
the contrary of this has been presumed. The mistake has pro- 
ceeded from not attending with due care to the mischiefs that may 
be occasioned, by obstructing the progress of government at cer- 
tain critical seasons. When the concurrence of a large number is 
required by the constitution to the doing of any national act, we 
are apt to rest satisfied that all is safe, because nothing improper 
will be likely to he done ; but we forget, how much good may 
be prevented, and how much ill may be produced, by the power 
of hindering that which it is necessary to do, and of keeping 
affairs in the same unfavorable posture in which they may hap- 
pen to stand at particular periods. 



THE FEDERALIST. 101 

Suppose, for instance, we were engaged in a war, in conjunction 
with one foreign nation, against another. , Suppose the necessity 
of our situation demanded peace, and that the interest or ambition 
of our ally led him to seek the prosecution of the war, with views 
that might justify us in making separate terms. In such a state of 
things, this ally of ours would evidently find it much easier, by his 
bribes and his intrigues, to tie up the hands of government for 
making peace, where two thirds of all the votes were requisite to 
that object, than where a simple majority would suffice. In the 
first case, he would have to corrupt a smaller — in the last, a great- 
er number. Upon the same principle, it would be much easier for a 
foreign power with which we were at war, to perplex our councils, 
and embarrass our exertions. And, in a commercial view, we may 
be subjected to similar inconveniences. A nation, with which we 
might have a treaty of commerce, could with much greater facili- 
ty prevent our forming a connexion with her competitor in trade ; 
though such a connexion should be ever so beneficial to ourselves. 

Evils of this description ought not to be regarded as imaginary. 
One of the weak sides of republics, atnong their numerous advant- 
ages, is, that they aff'ord too easy an inlet to foreign corruption. A 
hereditary monarch, though often disposed to sacrifice his subjects 
to his ambition, has so great a personal interest in the government, 
and in the external glory of the nation, that it is not easy for a 
foreign power to give him an equivalent for what he would sacri- 
fice by treachery to the state. The world has accordingly been 
witness to few examples of this species of royal prostitution, 
though there have been abundant specimens of every other kind. 

In republics, persons elevated from the mass of the community, 
by the suffrages of their fellow-citizens, to stations of great pre- 
eminence and power, may find compensations for betraying their 
trust, which, to any but minds actuated by superior virtue, may 
appear to exceed the proportion of interest they have in the com- 
mon stock, and to overbalance the obligations of duty. Hence it 
is, that history furnishes us with so many mortifying examples of 
the prevalency of foreign corruption in republican governments. 
How much this contributed to the ruin of the ancient common- 
wealths, has been already disclosed. It is well known, that the 
deputies of the United Provinces have, in various instances, been 
purchased by the emissaries of the neighboring kingdoms. The 
earl of Chesterfield, if my memory serves me right, in a letter to 
his court, intimates, that his success in an important negotiation 
must depend on his obtaining a major's commission for one of 
those deputies. And in Sweden, the rival parties were alternate- 
ly bought by France and England, in so barefaced and notorious 
a manner, that it excited universal disgust in the nation ; and was 
a principal cause that the most limited monarch in Europe, in a 



102 THE FEDERALIST. 

single day, without tumult, violence, or opposition, became one 
of the most absolute and uncontrolled. 

A circumstance which crowns the defects "of the confederation, 
remains yet to be mentioned — the want of a judiciary power. 
Laws are a dead lette'r, without courts to expound and define their 
true meaning and operation. The treaties of the United States, 
to have any force at all, must be considered as part of the law of 
the land. Their true import, as far as respects individuals, must, 
like all other laws, be ascertained by judicial determinations. To 
produce uniformity in these determinations, they ought to be sub- 
mitted, in the last resort, to one supreme tribunal. And this tri- 
bunal ought to be .instituted under the same authorities which 
form the treaties themselves. These ingredients are both indis- 
pensable. If there is in each state a court of final jurisdiction, 
there may be as many different final determinations on the same 
point, as there are courts. There are endless diversities in the opin- 
ions of men. We often see not only different courts, but the judges 
of the same court differing from each other. To avoid the confu- 
sion which would unavoidably result from the contradictory de- 
cisions of a number of independent judicatories, all nations have 
found it necessary to establish one tribunal paramount to the rest, 
possessing a general superintendence, and authorized to settle and 
declare in the last resort a uniform rule of civil justice. 

This is the more necessary where the frame of the government 
is so compounded, that the laws of the whole are in danger of be- 
ing contravened by the laws of the parts. In this case, if the par- 
ticular tribunals are invested with a right of ultimate decision, be- 
sides the contradictions to be expected from difference of opinion, 
there will be much to fear from the bias of local views and preju- 
dices, and from the interference of local regulations. As often 
as such an interference should happen, there would be reason to 
apprehend that the provisions of the parlicular laws might be pre- 
ferred to those of the general laws, from the deference with which 
men in office naturally look up to that authority to which they 
owe their official existence. The treaties of the United States, 
under the present constitution, are liable to the infractions of thir- 
teen different legislatures, and as many different courts of final 
jurisdiction, acting under the authority of those legislatures. The 
faith, the reputation, the peace of the whole union, are thus con- 
tinually at the mercy of the prejudices, the passions, and the inter- 
ests of every member of which these are composed. Is it possi- 
ble that foreign natioi'^s can either respect or confide in such a 
government ? Is it possible that the people of America will lon- 
ger consent to trust their honor, their happiness, their safety, on 
so precarious a foundation ? 

In this review of the confederation, I have confined myself to 
the exhibition of its most material defects ; passing over those im- 



THE FEDERALIST. 103 

perfections in its details, by which even a considerable part of the 
power intended to be conferred upon it, has been in a g^ieat meas- 
ure rendered abortive. It must be by this time evident to all men 
of reflection, who are either free from erroneous prepossessions, or 
can divest themselves of them, that it is a system so radically 
vicious and unsound, as to admit not of amendment, but by an 
entire change in its leading features and characters. 

The organization of congress is itself utterly improper for the 
exercise of those powers whicl^ are necessary to be deposited in 
the union. A single assembly #iky be a proper receptacle of those 
slender or rather fettered authorities, which have been heretofore 
delegated to the federal head : but it would be inconsistent with all 
the principles of good government, to entrust it with those addi- 
tional powers, which, even the moderate and more rational adver- 
saries of the proposed constitution admit, ought to reside in the 
United States. If that plan should not be adopted : and if the 
necessity of the union should be able to withstand the ambitious 
aims of those men, who may indulge magnificent schemes of per- 
sonal aggrandisement from its dissolution ; the probability would 
be, that we should run into the project of conferring supplemen- 
tary powers upon congress, as they are now constituted. And 
either the machine, from the intrinsic feebleness of its structure, 
will moulder into pieces, in spite of ourjll-judged eff'orts to prop it : 
or, by successive augmentations of its force and energy, as necessity 
might prompt, we shall finally accumulate in a single body all the 
most important prerogatives of sovereignty ; and thus entail upon 
our posterity, one of the most execrable forms of government 
that human infatuation ever contrived. Thus we should create 
in reality that very tyranny, which the adversaries of the new 
constitution either are, or affect to be, solicitous to avert. 

It has not a little contributed to the infirmities of the existing 
federal system, that it never had a ratification by the people. 
Resting on no better foundation than the consent of the several 
legislatures, it has been exposed to frequent and intricate questions 
concerning the validity of its powers ; and has, in some instances, 
given birth to the enormous doctrine of a right of legislative re- 
peal. Owing its ratification to the law of a state, it has been con- 
tended, that the same authority might repeal the law by which it 
was raiified. However gross a heresy it may be to maintain that 
a party to a compact has a right to revoke that compact, the doc- 
trine itself has had respectable advocates. The possibility of a 
question of this nature, proves the necessity of laying the founda- 
tions of our national government deeper than in the mere sanction 
of delegated authority. The fabric of American empire ought 
to rest on the solid basis of the consent of the people. The' 
streams of national power ought to flow immediately from that 
pure original fountain of all legitimate authority. PUBLIUS. 



104 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 

THE NECESSITlf OF A GOVERNMENT, AT LEAST Eq,UALLY ENERGETIC 
WITH THE ONE PROPOSED. 

The necessity of a constitution, at least equally energetic with 
the one proposed, to the preservation of the union, is the point, 
at the examination of which we are now arrived. 

This inquiry will naturally divide itself into three branches. 
The objects to be provided for by the federal government ; the 
quantity of power necessary to the accomplishment of those ob- 
jects ; the persons upon whom that power ought to operate. Its 
distribution aj:id organization will more properly claim our atten- 
tion under the succeeding head. 

The principal purposes to be answered by union, are these ; 
the common defence of the members ; the preservation of the 
public peace, as well against internal convulsions as external at- 
tacks ; the regulation of commerce with other nations, and be- 
tween the states ; the superintendence of our intercourse, politi- 
cal and commercial, with foreign countries. 

The authorities essentia) to the care of the common defence, are 
these : to raise armies ; to build and equip fleets ; to prescribe rules 
for the government of both ; to direct their operations ; to provide 
for their support. These powers ought to exist without limitation ; 
because it is impossible to foresee or to define the extent and va- 
riety of national exigencies, and the correspondent extent and va- 
riety of the means which may be necessary to satisfy them The 
circumstances that endanger the safety of nations are infinite ; and 
for this reason no constitutional shackles can wisely be imposed on 
the power to which the care of it is committed. This power ought 
to be coextensive with all the possible combinations of such cir- 
cumstances ; and ought to be under the direction of the same 
councils which are appointed to preside over the common defence. 

This is one of those truths which, to a correct and unprejudiced 
mind, carries its own evidence along with it ; and may be obscured, 
but cannot be made plainer by argument or reasoning. It rests 
upon axioms as simple as they are universal -— the means ought 
to be proportioned to the end ; the persons from whose agency the 
attainment of any end is expected, ought to possess the means 
by which it is to be attained. 

Whether there ought to be a federal government entrusted with 
the care of the common defence, is a question in the first instance, 
open for discussion ; but the moment it is decided in the affirma- 
tive, it will follow, that that government ought to be clothed with 
all the powers requisite to the complete execution of its trust. And 



THE FEDERALIST. 105 

unless it can be shown, that the circumstances which may affect 
the public safety, are reducible within certain determinate limits ; 
unless the contrary of this position can be fairly and rationally 
disputed, it must be admitted as a necessary consequence, that 
there can be no limitation of that authority, which is to provide 
for the defence and protection of the community, in any matter 
essential to its efficacy ; that is, in any matter essential to the 
formation, direction^ or support of the national forces. < 

Defective as the present confederation has been proved to be, 
this principle appears to have been fully recognized by the framers 
of it ; though they have not made proper or adequate provision 
for its exercise. Congress have an unlimited discretion to make 
requisitions of men and money ; to govern the army and navy ; 
to direct their operations. As their requisitions are made consti- 
tutionally binding upon the states, who are in fact under the 
most solemn obligations to furnish the supplies required of them, 
the intention evidently was that the United States should com- 
mand whatever resources were by them judged requisite to the 
"common defence and general welfare." It was presumed, that 
a sense of their true interests,' and a regard to the dictates of 
good faith, would be found sufficient pledges for the punctual 
performance of the duty of the members to the federal head. 

The experiment has, however, demonstrated, that this expect- 
ation was ill-founded and illusory ; and the observations, made 
under the last head will, I imagine, have sufficed to convince the 
impartial and discerning, that/ there is an absolute necessity for 
an entire change in the first principles of the system. That if 
we are in earnest about giving the union energy and duration, 
we must abandon the vain project of legislating upon the states 
in their collective capacities ; we must extend the laws of the 
federal government to the individual citizens of America : we 
must discard the fallacious scheme of quotas and requisitions, as 
equally impracticable and unjust. The result from all this is- 
that the union ought to be invested with full power to levy troops ;. 
to build and equip fleets ; and to raise the revenues which will be 
required for the formation and support of an army and navy, in: 
the customary and ordinary modes practised in other govern- 
ments. 

If the circumstances of our country are such as to demand a 
compound instead of a simple — a confederate instead of a sole 
government, the essential point which will remain to be adjusted, 
will be to discrimuiate the objects, as far as it can be done, 
which shall appertain to the different provinces or departments of 
power : allowing to each the most ample authority for fulfilling 
THOSE which may be committed to its charge. Shall the union 
be constituted the guardian of the common safety ? Are fleets 
and armies, and revenues, necessary to this purpose ? The gov- 
14 



106 THE FEDERALIST. 

ernmerit of the union must be empowered to pass all laws, and 
to make all regulations which have relation to them. The same 
^ must be the case in respect to commerce, and to every other mat- 
. ter to which its jurisdiction is permitted to extend. Is the ad- 
ministration of justice between the citizens of the same state, the 
proper department of the local governments? These must pos- 
. sess all the authorities which are connected with this object, and 
•with every other that may be allotted to their particular cogniz- 
ance and direction. Not to confer in each case a degree of power 
commensurate to the end, would be to violate the most obvious 
rules of prudence and propriety, and improvidently to trust the 
great interests of the nation to hands which are disabled from 
managing them with vigor and success. 

Who so likely to make suitable provisions for the public 
defence, as that body to which the guardianship of the public 
safety is confided ; which, as the centre of information, will best 
understand the extent and urgency of the dangers that threaten ; 
as the representative of the whole, will feel itself most deeply 
interested in the preservation of every part ; which from the 
responsibility implied in the duty assigned to it will be most sen- 
sibly impressed with the necessity of proper exertions ; and 
which, by the extension of its authority throughout the states, 
can alone establish uniformity and concert in the plans and 
measures, by which the common safety is to be secured? Is 
there not a manifest inconsistency in devolving upon the federal 
government the care of the general defence, and leaving in the 
state governments the effective powers, by which it is to be pro- 
vided for ? Is not a want of cooperation the infallible conse- 
quence of such a system ? And will not weakness, disorder, ah 
undue distribution of the burthens and calamities of war, an 
unnecessary and intolerable increase of expense, be its natural 
and inevitable concomitants ? Have we not had unequivocal 
experience of its effects in the course of -the revolution which 
we have just achieved ? 

Every view we may take of the subject, as candid inquirers 
'after truth, will serve to convince us, that it is both unwise and 
dangerous to deny the federal government an unconfined author- 
ity in respect to all those objects which are entrusted to its man- 
agement. It will indeed deserve the most vigilant and careful 
attention of the people, to see that it be modelled in such a 
manner as to admit of its being safely vested with the requisite 
powers. If any plan which has been, or may be, offered to our 
consideration, should not, upon a dispassionate inspection, be 
found to answer this description, it ought to be rejected. A 
government, the constitution of which renders it unfit to be 
entrusted with all the powers which a free people ought to dele- 
gate to any government^ would be an unsafe and improper depos- 



THE FEDERALIST. 107 

itory of the national interests. Wherever these can with 
propriety be confided, the coincident powers may safely accom- 
pany them. This is the true resiUt of all just reasoning upon 
the subject. And 'the adversaries of the plan promulgated by 
the convention, would have given a better impression of their 
candor if they had confined themselves to showing, that the in- 
ternal structure of the proposed government was such as to ren- 
der it unworthy of the confidence of the people. They ought 
not to have wandered into inflammatory declamations and unmean- 
ing cavils, about the extent of the powers. The powers are 
not too extensive for the objects of federal administration, or, in 
other words, for the management of our national interests; 
nor can any satisfactory argument be framed to show that they 
are chargeable with such an excess. If it be true, as has been 
insinuated by some of the writers on the other side, that the 
difficulty arises from the nature of the thing, and that the extent 
of the country will not permit us to form a government in which 
such ample powers can safely be reposed, it would prove that we 
ought to contract our views, and resort to the expedient of sep- 
arate confederacies, which will move within more practicable 
spheres. For the absurdity must continually stare us in the face 
of confiding to a governmenfe the direction of the most essential 
national concerns, without daring to trust it with the authorities 
which are indispensable to their proper and efficient management. 
Let us not attempt to reconcile contradictions, but firmly embrace^ 
a rational alternative. 

I trust, however, that the impracticability of one general sys- 
tem cannot be shown. I am greatly mistaken, if any thing of 
weight has yet been advanced of this tendency; and I flatter 
myself, that the observations Avhich have been made in the 
course of these papers, have served to place the reverse of that 
position in as clear a light as any matter, still in the womb of 
time and experience, is susceptible of. This, at all events, must 
be evident, that the very difficulty itself, drawn from the extent 
of the country, is the strongest argument in favor of an energetic 
government ; for any other can certainly never preserve the union 
of so large an empire. If we embrace, as the standard of our 
political creed, the tenets of those who oppose the adoption of the 
proposed constitution, we cannot fail to verify the gloomy doc- 
trines which predict the impracticability of a national system, 
pervading the entire limits of the present confederacy. 

PUBLIUS. 



108 THE FEDERALIST. 

BY ALEXANDER HAMILTON. \ 

THE SUBJECT CONTINUED, WITH AN ANSWER TO AN OBJECTION CON- 
CERNING STANDING ARMIES. 

To the powers proposed lo be conferred upon the federal gov- 
ernment, in respect to the creation and direction of the national 
forces, I have met with but one specific objection ; which is, that 
proper provision has not been made against the existence of stand- 
ing armies in time of peace ; an objection which, I shall now en- 
deavor to show, tests on weak and unsubstantial foundations. 

It has indeed been brought forward in the most vague and gen- 
eral form, supported only by bold assertions, without the appear- 
ance of argument ; without even the sanction of theoretical opin- 
ions ; in contradiction to the practice of other free nations, and to 
the general sense of America, as expressed in most of the existing 
constitutions. The propriety of this remark will appear, the mo- 
ment it is recollected that the objection under consideration turns 
upon a supposed necessity of restraining the legislative author- 
ity of the nation, in the article of military establishments ; a 
principle unheard of, except in one or two of our state constitu- 
tions, and rejected in all the rest. 

A stranger to our politics, who was to read our newspapers at 
the present juncture, without having previously inspected the plan 
reported by the convention, would be naturally led to one of two 
conclusions : either that it contained a positive injunction, that 
standing armies should be kept up in time of peace ; or that it 
vested in the executive the whole power of levying troops with- 
out subjecting his discretion in any shape to the control of the 
legislature. 

If he came afterwards to peruse the plan itself, he would be sur- 
prised to discover, that neither the one nor the other was the case j 
that the whole power of raising armies was lodged in the legisla- 
ture, not in the executive ; that this legislature was to be a popular 
body, consisting of the representatives of the people periodically 
elected ; and that instead of the provision he had supposed in favor 
of standing armies, there was to be found, in respect to this object 
an important qualification even of the legislative discretion, in that 
clause which forbids the appropriation of money for the support of 
an army for any longer period than two years : a precaution which 
upon a nearer view of it, will appear to be a great and real secu- 
rity against military establishments without evident necessity. 

Disappointed in his first surmise, the person I have supposed 
would be apt to pursue his conjectures a little further. He would 
naturally say to himself, it is impossible that all this vehement and 



, • THE FEDERALIST. 109 

pathetic declamation can be without some colorable pretext. It 
must needs be that this people, so jealous of their liberties, have, 
in all the preceding models of the constitutions which they have 
established, inserted the most precise and rigid precautions on 
this point, the omission of which in the new plan, has given 
birth to all this apprehension and clamor. 

If, under this impression, he proceeded to pass in review the 
several state constitutions, how great would be his disappointment 
to find that tivo only of them* contain an interdiction of standing 
armies in time of peace ; that the other eleven had either observ- 
ed a profound silence on the subject, or had in express terms ad- 
mitted the right of the legislature to authorize their existence. 

Still, however, he would be persuaded that there must be some 
plausible foundation, for the cry raised on this head. He would 
never be able to imagine, while any source of information remain- 
ed unexplored, that it was nothing more than an experiment upon 
the public credulity, dictated either by a deliberate intention to 
deceive, or by the overflowings of a zeal too intemperate to be in- 
genuous. It would probably occur to him, that he would be like- 
ly to find the precautions he was in search of, in" the primitive 
compact between the states. Here, at length, he would expect to 
mee,t with a solution of the enigma. No doubt, he would observe 
to himself, the existing confederation must contain the most expli- 
cit provisions against military establishments in time of peace ; and 
a departure from this model in a favorite point, has occasioned the 
discontent which appears to influence these political champions. 

If he should now apply himself to a careful and critical survey 
of the articles of confederation, his astonishment would not only 
be increased, but would acquire a mixture of indignation, at the 
unexpected, discovery, that these articles instead of containing the 
prohibition he looked for, and though they had, with jealous cir- 
cumspection, restricted the authority of the state legislatures in this 
particular, had not imposed a single restraint on that of the United 
States. If he happened to be a man of quick sensibility, or ardent 
temper, he could now no longer refrain from pronouncing these 
clamors to be the dishonest artifices of a sinister and unprincipled 

* This statement of the matter is taken from the printed collection of state con- 
stitutions. Pennsylvania and North Carolina are the two which contain the inter- 
dictions in these words : " As standing armies in time of peace are dangerous to 
" liberty, THEY ought not to be kept up." This is, in truth, rather a caution 
than a prohibition. New Hampshire, Massachusetts, Delaware, anc^ Maryland 
have, in each of their bills of rights, a clause to this effect : " Standing armies are 
" dangerous to liberty, and ought not to be raised or kept up without the con- 
" SENT OF the legislatuke ; " which is a formal admission of the authority of 
the legislature. New York has no bill of rights, and her constitution says not a 
word about the matter. No bills of rights appear annexed to the constitutions of 
other states, and their constitutions are equally silent. I am told, however, that 
one or two states have bills of rights which do not appear in this collection ; but 
that those also recognize the riglit of the legislative authority in this respect. 



110 THE FEDERALIST. # 

opposition to a plan, which ought at least to receive a fair and can- 
did examination from all sincere lovers of their country ! How 
else, he would say, could the authors of them have been tempted 
to vent such loud censures upon that plan, about a point in which 
it seems to have conformed itself to the general sense of America 
as declared in its different forms of government, and in which it 
has even superadded a new and powerful guard unknown to any 
of them ? If, on the contrary, he happened to be a man of calm 
and dispassionate feelings, he would indulge a sigh for the frailty 
of human nature, and would lament, that in a matter so interest- 
ing to the happiness of millions, the true merits of the question 
should be perplexed and obscured by expedients so unfriendly to 
an impartial and right determination. Even such a man could 
hardly forbear remarking, that a conduct of this kind, has too 
much the appearance of an intention to mislead the people by 
alarming their passions, rather than to convince them by argu- 
ments addressed to their understandings. 

But however little this objection may be countenanced, even 
by precedents among ourselves, it may be satisfactory to take a 
nearer view of its intrinsic merits. Prom a close examination, 
it will appear, that restraints upon the discretion of the legisla- 
ture, in respect to military establishments, would be improper to 
be imposed ; and, if imposed, from the necessities of society, 
would be unlikely to be observed. 

Though a wide ocean separates the United States from Europe 
yet there are various considerations that warn us against an excess 
of confidence or security. On one side of us, stretching far into 
our rear, are growing settlements subject to the dominion of Britain. 
Gn the other side, and extending to meet the British settlements, 
are colonies and establishments subject to the dominion of Spain. 
This situation, and the vicinity of the West India islands, belong- 
ing -to these two powers, create between them, in respect to their 
American possessions, and in relation to us, a common interest. 
The savage tribes on our western frontier ought to be regarded as 
our natural enemies ; their natural allies : because they have most 
to fear from us, and most to hope from them. The improvements 
in the art of navigation, have, as to the facility of communication, 
rendered distant nations, in a great measure, neighbors. Britain 
and Spain are among the principal maritime powers of Europe. 
A future concert of views between these nations, ought not to be 
regarded as improbable. The increasing remoteness of consan- 
guinity, is every day diminishing the force of the family compact 
between France and Spain. And politicians have ever with 
great reason, considered the ties of blood, as feeble and precarious 
links of political connexion. These circumstances, combined, 
admonish us not to be too sanguine in considering ourselves as 
entirely out of the reach of danger. 



• THE FEDERALIST. Ill 

Previous to the revolution, and ever since the peace, there has 
been a constant necessity for keeping small garrisons on our west- 
ern frontier. No person can doubt, that these will continue to be 
indispensable if it should only be to guard against the ravages and 
depredations of the Indians. These garrisons must either be furn- 
ished by occasional detachments from the militia, or by permanent 
corps in the pay of tiie government. The first is impracticable ; 
and if practicable, would be pernicious. The militia in times of 
profound peace, would not long, if at all, submit to be dragged 
from their occupations and families, to perform that most disagree- 
able duty. And if they could be prevailed upon, or compelled to 
do it, the increased expense of a frequent rotation of service, and 
the loss of labor, and disconcertion of the industrious pursuits of 
individuals, would form conclusive objections to the scheme. It 
would be as burthensome and injurious to the public, as ruinous to 
private citizens. The latter resource of permanent corps in the 
pay of government, amounts to a standing army in time of peace ; 
a small one, indeed, but not the. less real for being small. 

Here is a simple view of the subject, that shows us at once the 
impropriety of a constitutional interdiction of such establishments, 
and the necessity of leaving the matter to the discretion and pru- 
dence of the legislature. 

In proportion to our increase in strength, it is probable, nay, it 
may be said certain, that Britain and Spain would augment their 
military establishments in our neighborhood. If we should not be 
willing to be exposed, in a naked and defenceless condition, to 
their insults or encroachments, we should find it expedient to in- 
crease our frontier garrisons, in some ratio to the force by which 
our western settlements might be annoyed. There are, and will 
be particular posts, the possession of which will include the com- 
mand of large districts of territory, and facilitate future invasions 
of the remainder. It may be added, that some of those posts 
will be keys to the trade with the Indian nations. Can any man 
think it would be wise, to leave such posts in a situation to be at 
any instant seized by one pr the other of two neighboring and 
formidable powers ? To act this part, would be to desert all the 
usual maxims of prudence and policy. 

If we mean to be a commercial people, or even to be secure on 
our Atlantic side, we^ must endeavor, as soon as possible, to have a 
navy. To this purpose, there must be dockyards and arsenals : and 
for the defence of these, fortifications, and probably garrisons. 
When a nation has become so powerful by sea, that it can protect 
its dockyards by its fleets, this supersedes the necessity of garrisons 
for that purpose ; but where naval establishments are in their in- 
fancy, moderate garrisons will, .in all likelihood, be found an indis- 
pensable security against descents for the destruction of the arse- 
nals and dockyards, and sometimes of the fleet itself. PUBLIUS. 



112 THE FEDERALIST. , -> 

BY ALEXANDER HAMILTON. 
' THE SUBJECT CONTINUED, WITH THE SAME VIEW. 

It may perhaps be urged, that the objects enumerated in the 
preceding number onght to be provided by the state governments, 
under the direction of the union. But this would be an inversion of 
the primary principle of our political association ; as it would in 
practice transfer the care of the common defence from the federal 
head to the individual members : a project oppressive to some 
states, dangerous to all, and baneful to the confederacy. 

The territories of Britain, Spain, and of the Indian nations in 
our neighborhood, do not border on particular states; but encircle 
the union from Maine to Georgia. The danger though in differ- 
ent degrees, is therefore common. And the means of guarding 
against it, ought in like manner, to be the objects of common coun- 
cils, and of a common treasury. It happens that some states, 
from local situation, are more directly exposed. New York is of 
this class.. Upon the plan of separate provisions. New York would 
have to sustain the whole weight of the establishments requisite to 
her immediate safety, and to the mediate, or ultimate protection of 
her neighbors. This would neither be equitable as it respected New 
York, nor safe as it respected the other states. Various inconvenien- 
ces would attend such a system. The states, to whose lot it might 
fall to support the necessary establishments, would be as little able 
as willing, for a con,siderable time to come, to bear the burthen of 
competent provisions. The security of all would thus be subject- 
ed to the parsimony, improvidence, or inability of a part. If, from 
the resources of such part becoming more abundant, its provisions 
should be proportionally enlarged, the other states would quickly 
take the alarm at seeing the whole military force of the union in 
the hands of two or three of its members: and those probably 
amongst the most powerful. They would each choose to have 
some counterpoise ; and pretences ccJuld easily be contrived. In 
this situation, military establishments, nourished by mutual jeal- 
ousy, would be apt to swell beyond their natural or proper size ; and 
being at the separate disposal of the members, they would be en- 
gines for the abridgment, or demolition, of the national authority. 

Reasons have been already given to induce a supposition, that 
the state governments will too naturally be*prone to a rivalship with 
that of the union, the foundation of which will be the love of 
power ; and that in any contest between the federal head and one 
of its members, the people will be most apt to unite with their local 
government. If in addition to this immense advantage, the ambi- 
tion of the members should be stimulated by the separate and in- 



J 

THE FEDERALIST. 113 

dependent possession of military forces, it would afford too strong 
a temptation, and too great facility to them to make enterprises 
upon, and finally to subvert, the constitutional authority of the 
union. On the other hand, the liberty of the people would be 
less safe in this state of things, than in that which left the national 
forces in the hands of the national government. As far as an 
army may be considered as a dangerous weapon of power, it had 
betier be in those hands, of which the people are most likely to 
be jealous, than in those of which they are least likely to be so. 
For it is a truth which the experience of all ages has attested, 
that the people are commonly most in danger, when the means of 
injuring their rights are in the possession of those of whom they 
entertain the least suspicion. 

The framers of the existing confederation, fully aware of the 
danger to the union from the separate possession of military forces 
by the states, have in express terms prohibited them from having 
either ships or troops, unless with the consent of congress. The 
truth is. that the existence of a federal government and military 
establishments, under state authority, are not less at variance with 
each other, than a due supply of the federal treasury and the 
sys^tem of quotas and requisitions. 

There are other views besides those already presented, in which 
the impropriety of restraints on the discretion of the national leg- 
islature wilt be equally manifest. The design of the objection, 
which has been mentioned, is to preclude standing armies in time 
of peace ; though we have never been informed how far it is de- 
sired the prohibition should extend : whether to raising armies, as 
well as to keeping them up, in a season of tranquillity, or not. If 
it be confined to the latter, it will have no precise signification, 
and it will be ineffectual for the purpose intended. When armies 
are once raised, what shall be denominated "keeping them up," 
contrary to the sense of the constitution ? What time shall be re- 
quisite to ascertain the violation ? Shall it be a week, a month, a 
year ? Or shall we say, they may be continued as long as the dan- 
ger which occasioned their being raised continues? This would 
be to admit that they might be kept up in time of peace, against 
threatening or impending danger; which would be at once to de- 
viate from the literal meaning of the prohibition, and to introduce 
an extensive latitude of construction. Who shall judge of the 
continuanf^e of the danger ? This must undoubtedly be submitted 
to the national government, and the matter would then be brought 
to this issue, that the national government, to provide against ap- 
prehended danger, might in the first instance, raise troops, and 
might afterwards keep them on foot, as long as they supposed the 
peace or safety of the community was in any degree of jeopardy. 
It is easy to perceive, that a discretion so latitudinary as this, 
would ajfFord ample room for eluding the force of the provision. 

15 



114 THE FEDERALIST. 

The utility of a provision of this kindj can only be vindicated 
on the hypothesis of a probabiUty, at least possibility, of combina- 
tion between the executive and legislature, in some scheme of 
usurpation. Should this at any time happen, how easy would it 
be to fabricate pretences of approaching danger f Indian hostili- 
ties, instigated by Spain or Britain, would always be at hand. 
Provocations to produce the desired appearances, might even be 
given to some foreign power, and appeased again by timely con- 
cessions. If we can reasonably presume such a combination to 
have been formed, and that the enterprise is warranted by a suffi- 
cient prospect of success j the army when once raised, from what- 
ever cause, or on whatever pretext, may be applied to the execu- 
tion of the project. 

If to obviate this consequence, it should be resolved to extend 
the prohibition to the liaising of armies in time of peace, the Unit- 
ed States would then exhibit the most extraordinary spectacle, 
which the world has yet seen — that of a nation incapacitated by 
its constitution to prepare for defence, before it was actually invad- 
ed. As the ceremony of a formal denunciation of war has of late 
fallen into disuse, the presence of an enemy within our territories 
must be waited for, as the legal warrant to the government to begin 
its levies of men for the protection of the state. We must receive 
the blow, before we could even prepare to return it. All that kind 
of policy by which nations anticipate distant danger, and meet the 
gathering storm, must be abstained from, as contrary to the 
genuine maxims of a free government. We must expose our 
property and liberty to the mercy of foreign invaders, and invite 
them by our weakness, to seize the naked and defenceless prey, 
because we are afraid that rulers, created by our choice, depend- 
ent on our will, might endanger that liberty, by an abuse of the 
means necessary to its preservation. 

Here I expect we shall be told, that the militia of the country is 
its natural bulwark, and would at all times be equal to the national 
defence. This doctrine, in substance, had like to have lost us our 
independence. It cost millions to the United States, that might 
have been saved. The facts, which from our own experience for- 
bid a reliance of this kind, are too recent to permit us to be the 
dupes of such a suggestion. The steady operations of war against 
a regular and disciplined army, can only be successfully conducted 
by a force of the same kind. Considerations of economy, not less 
than of stability and vigor, confirm this position. The American 
militia, in the course of the late war, have, by their valor on nu- 
merous occasions, erected eternal monuments to their fame ; but 
the bravest of them feel and know, that the liberty of their coun- 
try could not have been established by their efforts alone, however 
great and valuable they were. War, like most other things, is A 



THE FEDERALIST. 115 

science to be acquired and perfected by diligence, by persever- 
ance, by time, and by practice. 

All violent policy, as it is contrary to the natural and experienced 
course of human affairs, defeats itself. Pennsylvania at this in- 
stant affords an example of the truth of this remark. The bill of 
rights of that state declares, that standing armies are dangerous to 
liberty, and ought not to be kept up in time of peace. Pennsyl- 
vania, nevertheless, in a time of profound peace, from the existence 
of partial disorders in one or two of her counties, has resolved to 
raise a body of troops: and in all probability, will keep them up 
as long as there is any appearance of danger to the public peace. 
The conduct of Massachusetts affords a lesson on the same subject, 
though on different ground. That state (without waiting for the 
sanction of congress, as the articles of the confederation require,) 
was compelled to raise troops to quell a domestic insurrection, and 
still keeps a corps in pay to prevent a revival of the spirit of revolt. 
The particular constitution of Massachusetts opposed no obstacle 
to the measure ; but the instance is still of use to instruct us, that 
cases are likely to occur under our governments, as well as under 
those of other nations, which will sometimes render a military force 
in time of peace essential to the security of the society, and that 
it is therefore improper, in this respect, to control the legislative 
discretion. It also teaches us, in its application to the United 
States, hov;;- little the rights of a feeble government are likely to 
be respected, even by its own constituents. And it teaches us, in 
addition to the rest, liow unequal are parchment provisions, to a 
struggle with public necessity. 

It was a fundamental maxim of the Lacedaemonian common- 
wealth, that the post of admiral should not be conferred twice on 
the same person. The Peloponnesian confederates, having suffered 
a severe defeat at sea from the Athenians, demanded Lysander, 
who had before served with success in that capacity, to command 
the combined fleets. The Lacedsemonians to gratify their allies, 
and yet preserve the semblance of an adherence to their ancient 
institutions, had recourse to the flimsy subterfuge of investing Ly- 
sander with the real power of admiral, under the nominal title of 
vice-admiral. This instance is selected from among the multitude 
that might be cited, to confirm the truth already advanced and il- 
lustrated by domestic examples ; which is, that nations pay little 
regard to rules and maxims, calculated in their very nature to run 
counter to the necessities of society. Wise politicians will be cau- 
tious about fettering the government with restrictions, that cannot 
be observed ; because they know, that every breach of the funda- 
mental laws, though dictated by necessity, impairs that sacred rev- 
erence, which ought to be maintained in the breast of rulers to- 
wards the constitution of a country, and forms a precedent for oth- 
er breaches, where the same plea of necessity does not exist at all, 
or is less urgent and palpable. PUBLIUS. . 



116 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 
THll SUBJECT CONTINUED, WITH THE SAME VIEW. 

It was a thing hardly to have been expected that in a popular 
revohition, the minds of men should stop at that happy mean 
which marks the salutary boundary between power and privi- 
lege, and combines the energy of government with the security 
of private rights. A failure in this delicate and important point, 
is the great source of the inconveniences we experience ; and if 
we are not cautious to avoid a repetition of the error, in our fu- 
ture attempts to rectify and meliorate our system, we may travel 
from one chimerical project to another ; we may try change af- 
ter change ; but we shall never be likely to make any material 
change for the better. 

The idea of restraining the legislative authority, in the means 
for providing for the national defence, is one of those refinements, 
which owe their origin to a zeal for liberty more ardent than en- 
lightened. We have seen, however, that it has not had thus far an 
extensive prevalency ; that even in this country, where it made its 
first appearance, Pennsylvania and North Carolina are the only two 
states by which it has been in any degree patronized ; and that all 
the others have refused to give it the least countenance. They wise- 
ly judged that confidence must be placed somewhere ; that the ne- 
cessity of doing it, is implied in the very act of delegating power; 
and that it is better to hazard the abuse of that confidence, than to 
embarrass the government and endanger the public safety, by im- 
politic restrictions on the legislative authority. The opponents of 
the proposed constitution combat in this respect the general deci- 
sion of America ; and instead of being taught by experience the 
propriety of correcting any extremes into which we may have here- 
tofore run, they appear disposed to conduct us into others still 
more dangerous, and more extravagant. As if the tone of gov- 
ernment had been found too high, or too rigid, the doctrines they 
teach are calculated to induce us to depress or to relax it, by expedi- 
ents which upon other occasions, have been condemned or forborne. 
It may be affirmed without the imputation of invective, that if the 
principles they inculcate, on various points, could so far obtain as 
to become the popular creed, they would utterly unfit the people 
of this country for any species of government whatever. But a 
danger of this kind is not to be apprehended. The citizens of 
America have too much discernment, to be argued into anarchy. 
And I am much mistaken, if experience has not wrought a deep 
and solemn conviction in the public mind, that greater energy of 
government is essential to the welfare and prosperity of the com- 
munity. 



THE FEDERALIST. 117 

It may not be amiss in this place concisely to remark the origin 
and progress of the idea, which aims at the exclusion of military es- 
tablishments in time of peace. Though in speculative minds, it 
may arise from a contemplation of the nature and tendency of such 
institutions, fortified by the events that have happened in other 
ages and countries ; yet as a national sentiment, it must be traced 
to those habits of thinking which we derive from the nation, from 
which the inhabitants of these states have in general sprung. 

In England, for a long time after the Norman conquest, the au- 
thority of the monarch was a|^ost unlimited. Inroads were grad- 
ually made upon the prerogative, in favor of liberty, first by the- 
barons, and afterwards by the people, till the greatest part of its 
most formidable pretensions became extinct. But it was not till 
the revolution in 1688, which elevated the prince of Orange to the 
throne of Great Britain, that English liberty was completely tri- 
umphant. As incident to the undefined power of making war, 
an acknowledged prerogative of the crown, Charles 11. had, by 
his own authority, kept on foot in time of peace a body of 5000 
regular troops. And this number James II. increased to 30,000 ; 
who were paid out of his civil list. At the revolution, to abolish 
the excercise of so dangerous an authority, it became an article of 
the bill of rights then framed, that "raising or keeping a stand- 
" ing army within the kingdom in time of peace, unless with the 
consent of parliament, was against law." 

In that kingdom, when the pulse of liberty was at its highest 
pitch, no security against the danger of standing armies was thought 
requisite, beyond a prohibition of their being raised or kept up by 
the mere authority of the executive magistrate. The patriots, who 
effected that memorable revolution, were too temperate, and too 
well-informed, to think of any restraint on the legislative discre- 
tion. They were aware, that a certain number of troops for guards 
and garrisons were indispensable ; that no precise bounds could be 
set to the national exigencies ; that a power equal to every possible 
contingency must exist somewhere in the government : and that 
when they referred the exercise of that power to the judgment of 
the legislature, they had arrived at the ultimate point of precau- 
tion, which was reconcilable with the safety of the community. 

From the same source, the people of America may be said to 
have derived an hereditary impression of danger to liberty, from 
standing armies in time of peace. The circumstances of a revolu- 
tion quickened the public sensibility on every point connected with 
the security of popular rights, and in some instances raised the 
warmth of our zeal beyond the degree, which consisted with the 
due temperature of the body politic. The attempts of two of the 
states, to restrict the authority of the legislature in the articles of 
military establishments, are of the number of these instances. 
The principles which had taught us to be jealous of the power of . 



118 THE FEDERALIST. 

an hereditary monarch, were by an injudicious excess extended 
to the representatives of the people in their popular assemblies. 
Even in some of the states, where this error was not adopted, we 
find unnecessary declarations, that standing armies ought not to 
be kept up, in time of peace, without the consent of the legisla- 
ture. I call them unnecessary, because the reason which had in- 
troduced a similar provision into the English bill of rights is not 
applicable to any of the state constitutions. The power of raising 
armies at all, under those constitutions, can by no construction be 
deemed to reside anywhere else, than in the legislatures them- 
selves ; and it was superfluous, if not absurd, to declare, that a 
matter should not be done without consent of a body, which 
alone had the power of doing it. Accordingly, in some of those 
constitutions, and among others, in that of the state of New York, 
which has been justly celebrated, both in Europe and America, 
as one of the best of the forms of government established in this 
country, there is a total silence upon the subject. 

It is remarkable, that even in the two states, which seem to 
have meditated an interdiction of military establishments in time 
of peace, the mode of expression made use of is rather monitory 
than, prohibitory. It is not said, that standing armies shall not 
be kept up, but that they ought not to be kept up in time of 
peace. This ambiguity of terms appears to have been the result 
of a conflict between jealousy and conviction ; between the de- 
sire of excluding such establishments at all events, and the per- 
suasion that an absolute exclusion would be unwise and unsafe. 

Can it be doubted that such a provision, whenever the situation 
of public affairs was understood to require a departure from it, 
would be interpreted by the legislature into a mere admonition, 
and would be made to yield to the actual or supposed necessities 
of the state ? Let the fact already mentioned, with respect to 
Pennsylvania, decide. What then, it may be asked, is the use 
of such a provision, if it cease to operate, the moment there is 
an inclination to disregard it ? 

Let us examine whether there be any comparison, in point of 
efficacy, between the provision alluded to, and that which is con- 
tained in the new constitution for restraining the appropriations 
of money for military purposes to the period of two years. The 
former, by aiming at too much, is calculated to effect nothing : the 
latter, by steering clear of an imprudent extreme, and by being 
perfectly compatible with a proper, provision for the exigencies of 
the nation, will have a salutary and powerful operation. 

The legislature of the United States will be obliged, by this pro- 
vision, once at least in every two years, to deliberate upon the pro- 
priety of keeping a military force on foot ; to qpn'je to a new reso- 
lution on the point ; and to declare their sense of the matter, by a 
formal vote in the face of their constituents. They are not at lib- 



THE FEDERALIST. llSi 

erty to vest ia the executive department permanent funds for the 
support of an army ; if they were even incautious enough to be 
willing to repose in it so improper a confidence. As the spirit of 
party in different degrees, must be expected to infect all political 
bodies, there will be, no doubt, persons in the national legislature 
willing enough to arraign the measures and criminate the views 
of the majority. The provision for the support of a military 
force, will always be a favorable topic for declamation. As often 
as the question comes^ forward, the public attention will be rous- 
ed and attracted to the subject, by the party in opposition ; and if' 
the majority should be really disposed to exceed the proper limits, 
the community will be warned of the danger, and will have an 
opportunity of taking measures to guard against it. Independent 
of parties in the national legislature itself, as often as the period 
of discussion arrived, the state legislatures, who will always be 
not only vigilant, but suspicious and jealous guardians of the 
rights of the citizens, against encroachments from the federal 
government, will constantly have their attention awake to the 
conduct of the national rulers, and will be ready enough, if any 
thing improper appears, to sound the alarm to the people, and not 
only to be the voice, but, if necessary, the arm of their discon- 
tent. 

Schemes to subvert the liberties of a great community, require 
time to mature them for execution. An army, so large as seri- 
ously to menace those liberties, could only be formed by progres- 
sive augmentations ; which would suppose, not merely a temporary 
combination between the legislature and executive, but a contin- 
ued conspiracy for a series of time. Is it probable that such a 
combination would exist at all ? Is it probable that it would be 
persevered in, and transmitted through all the successive varia- 
tions in a representative body, which biennial elections would 
naturally prodiKje in both houses? Is it presumable, that every 
man, the instant he took his seat in the national senate or house 
of representatives, would commence a traitor to his constituents 
and to his country ? Can it be supposed, that there would not 
be found one man, discerning enough to detect so atrocious a 
conspiracy, or bold or honest enough to apprize his constituents 
of their danger? If such presumptions can fairly be made, there 
ought at once to be an end of all delegated authority. The peo- 
ple should resolve to recall all the powers they have heretofore 
parted with ; and to divide themselves into as many states as 
there are counties, in order thert they may be able to manage 
their own concerns in person. 

If such suppositions could even be reasonably made, still the 
concealment of the design, for any duration would be impracti- 
cable. It would be announced, by the very circumstance of aug- 
menting the army to so great an extent, in time of profound 



120 THE FEDERALIST. 

■» 
peace. What colorable reason could be assigned, in a country so 

situated, for such vast augmentations of the military force ? It 

is impossible that the people could be long deceived ; and the 

destruction of the project, and of the projectors, would quickly 

follow the discovery. 

It has been said, that the provisi<jn which limits the appropria- 
tion of money for the support of an army to the period of two 
years would be unavailing ; because the executive, when once 
possessed of a force large enough to awe the people into submis- 
sion, would find resources in that very force, sufficient to enable 
him to dispense with supplies from the votes of the legislature. 
But the question again recurs : upon what pretence could he be 
put in possession of a force of that magnitude in time of peace? 
If we suppose it to have been created in consequence of some 
domestic insurrection or foreign war, then it becomes a case not 
within the principle of the objection ; for this is leveled against 
the power of keeping up troops in time of peace. Few persons 
will be so visionary, as seriously to contend that military forces 
ought not to be raised to quell a rebellion, or resist an invasion ; 
and if the defence of the community, under such circumstances, 
should make it necessary?' to have an army so numerous as to 
hazard its liberty, this is one of those calamities for which there 
is neither preventative nor cure. It cannot be provided against 
by any possible form of government : it might even result from 
a simple league offensive and defensive ; if it should ever be 
necessary for the confederates or allies, to form an army for com- 
mon defence. 

But it is an evil, infinitely less likely to attend us in an united, 
than in a disunited state : nay, it may be safely asserted that it is 
an evil altogether unlikely to attend us in the latter situation. It 
is not easy to conceive a possibility that dangers so formi(iul)lH 
can assail the whole union, as to demand a force consideraltie 
enough to place our liberties in the least jeopardy, especially it 
we take into view the aid to be derived from the militia, which 
ought always to be counted upon as a valuable and powerful aux- 
iliary. But in a state of disunion, as has fully been shovii iu 
another place, the contrary of this supposition would become not 
only probable, but almost unavoidable. PUBLIU8. 



THE FEDERALIST. 121 

BY ALEXANDER HAMILTON. 

THE SUBJECT CONTINUED, WITH THE SAME VIEW. 

It has been urged, in different shapes, that a constitution of the 
kind proposed by the convention, cannot operate without the aid 
of a military force to execute its laws. This, however, like most 
other things that have been alleged on that side, rests on mere gen- 
eral assertion, unsupported by any precise "or intelligible designa- 
tion of the reasons upon which it is founded. As far as I have 
been able to divine the latent meaning of the objectors it seems to 
originate in a presupposition, that the people will be disinclined to 
the exercise of federal authority, in any matter of an internal na- 
ture. Waiving any exception that might be taken to the inaccura- 
cy, or inexplicitness, of the distinction between internal and exter- 
nal, let us inquire what ground there is to presuppose that disincli- 
nation in the people. Unless we presume, at the same time, that 
the powers of the general government will be worse administered 
than those of the state governments, there seems to be no room 
for the presumption of ill-will, disaffection, or opposition in the 
people. I believe it may be laid down as a general rule, that their 
confidence in, and their obedience to a government, will com- 
monly be proportioned to the goodness or badness of its adminis- 
tration. It must be admitted, that there are exceptions to this 
rule ; but these exceptions depend so entirely on accidental causes, 
that they cannot be considered as having any relation, to the in- 
trinsic merits or demerits of a constitution. These can only be 
judged of by general principles and maxims. 

Various reasons have been suggested, in the course of these 
papers, to induce a probability, that the general government will 
be better administered than the particular governments ; the prin- 
cipal of which are, that the extension of the spheres of election 
will present a greater option, or latitude of choice, to the people ; 
that through the medium of, the state legislatures, who are select 
bodies of men, and who are to appoint the members of the nation- 
al senate, there is reason to expect, that this branch will generally 
be composed with peculiar care and judgment ; that these circum- 
stances promise greater knowledge, and more comprehensive infor- 
mation, in the national councils ; and that on account of the ex- 
tent of the country from which will be drawn those to whose di- 
rection they will be ^committed, they will be less apt to be tainted 
by the spirit of faction, and more out of the reach of those occa- 
sional ill-humors, or temporary prejudices and propensities, which, 
in smaller societies, frequently contaminate the public deliberations, 
beget injustice and oppression towards a part of the community, 
16 



122 THE FEDERALIST. 

« 
and engender schemes, which, though they gratify a momentary 
inclination or desire, terminate in general distress, dissatisfaction, 
and disgust. Several additional reasons of considerable force, will 
occur, to fortify that probability, when we come to survey, with a 
more critical eye, the interior structure of the edifice which we are 
invited to erect. It will be sufficient here to remark, that until 
satisfactory reasons can be assigned to justify an opinion, that the 
federal government is likely to be administered in such a manner 
as to render it odious or contemptible to the people, there can be 
no reasonable foundation for the supposition, that the laws of the 
union will meet with- any greater obstruction from them, or will 
stand in need of any other methods to enforce their execution, 
than the laws of the particular members. 

The hope of impunity is a strong incitement to sedition : the 
dread of punishment, a proportionably strong discouragement to it. 
Will not the government of the union, which if possessed of a due 
degree of power, can call to its aid the collective resources of the 
whole confederacy, be more likely to repress the former sentiment 
and to inspire the latter, than that of a single state, which can 
only command the resources within itself? A turbulent faction in 
a state, may easily suppose itself able to contend with the friends 
to the government in that state ; but it can hardly be so infatuated 
as to imagine itself equal to the combined efforts of the union. 
If this reflection be just, there is less danger of resistance from 
irregular combinations of individuals, to the authority of the con- 
federacy, than to that of a single member. 

I will, in the first place, hazard an observation, which will not be 
less just, because to some it may appear new ; which is, that the 
more the operations of the national authority are intermingled in 
the ordinary exercise of government ; the more the citizens are 
accustomed to meet with it in the common occurrences of their 
political life ; the more it is familiarized to their sight, and to their 
feelings ; the further it enters into those objects which touch the 
most sensible chords, and put in motion the most active springs of 
the human heart ; — the greater will be the probability, that it will 
conciliate the respect and attachment of the community. Man is 
very much a creature of habit. A thing that rarely strikes his 
senses, will have but a transient influence upon his mind. A gov- 
ernment continually at a distance and out of sight, can hardly be 
expected to interest the sensations of the people. The inference 
is, that the authority of the union, and the affections of the citi- 
zens towards it, will be strengthened, rather than weakened, by its 
extension to what are called matters of internal concern ; and that 
it will have less occasion to recur to force, in proportion to the fa- 
miliarity and comprehensiveness of its agency. The more it cir- 
culates through those channels and currents, in which the passions 



THE FEDERALIST. 123 

of mankind naturally flow, the less will it require the aid of the 
violent and perilous expedients of compulsion. 

One thing, at all events, must be evident, that a government 
like the one proposed, would bid much fairer to avoid the neces- 
sity of using force, than the species of league contended for by 
most of its opponents ; the authority of which should only oper- 
ate upon the states in their political or collective capacities. It 
has been shown, that in such a confederacy there can be no 
sanction for the laws but force ; that frequent delinquencies in 
the members, are the natural offspring of the very frame of the 
government ; and that as often as these happen, they can only be 
redressed, if at all, by war and violence. 

The plan reported by the convention, by extending the authori- 
ty of the federal head to the individual citizens of the several 
states, will enable the government to employ the ordinary magis- 
tracy of each, in the execution of its laws. It is easy to perceive 
that this will tend to destroy, in the common apprehensions, all dis- 
tinction between the sources from which they might proceed ; and 
will give the federal government the same advantage for securing a 
due obedience to its authority, which is enjoyed by the government 
of each state ; in addition to the influence on public opinion, which 
will result from the important consideration, of its having power to 
call to its assistance and support the resources of the whole union. 
It merits particular attention in this place, that the laws of the con- 
federacy, as to the enumerated and legitimate objects of its juris- 
diction, will become the supreme law of the land ; to the observ- 
ance of which, all officers, legislative, executive, and judicial, in 
each state, will be bound by the sanctity of an oath. Thus the 
legislatures, courts, and magistrates, of the respective members, 
'will be incorporated into the operations of the national government 
as far as its just and constitutional authority extends ; and it 
will be rendered auxiliary to the enforcement of its laws.* Any 
man, who will pursue, by his own reflections, the consequences of 
this situation, will perceive, that if its powers are administered with 
a common share of prudence, there is good ground to calculate 
upon a regular and peaceable execution of the laws of the union. 
If we will arbitrarily suppose the contrary, we may deduce any in- 
ferences we please from the supposition ; for it is certainly possible, 
by an injudicious exercise of the authorities of the best government 
that ever was, or ever can be instituted, to provoke and precipitate 
the people into the wildest excesses. But though the adversaries 
of the proposed constitution should presume, that the national 
rulers would be insensible to the motives of public good, or to 
the obligations of duty ; I would still ask them, how the interests 
of ambition, or the views of encroachment, can be promoted by 
such a conduct ? PUBLIUS. 

* The sophistry which has been employed, to show that this will tend to the 
destruction of the state governments will, tn its proper place, be fuUy detected. 



124 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 

THE SAME SUBJECT CONTINUED. 

That there may happen cases in which the national govern- 
ment may be under the necessity of resorting to force, cannot be 
denied. Our own experience has corroborated the lessons taught 
by the examples of other nations ; that emergencies of this sort 
will sometimes exist in ail societies, however constituted ; that se- 
ditions and insurrections are, unhappily, maladies as inseparable 
from the body politic, as tumors and eruptions from the natural 
body; that the idea of governing at all times by the simple force 
of law, (which we have been told is the only admissible principle 
of republican government) has no place but in the revery of those 
political doctors, whose sagacity disdains the admonitions of exper- 
imental instruction. 

Should such emergencies at any time happen under the na- 
tional government, there could be no remedy but force. The 
means to be employed, must be proportioned to the extent of the 
mischief. If it should be a slight commotion in a small part of 
the state, the militia of the residue would be adequate to its sup- 
pression, and the natural presumption is, that they would be 
ready to do their duty. An insurrection, whatever may be its 
immediate cause, eventually endangers all government. Regard 
to the public peace, if not to the rights of the union, would en- 
gage the citizens, to whom the contagion had not communicated 
itself, to oppose the insurgents : and if the general government 
should be found in practice conducive to the prosperity and felic- 
ity of the people, it were irrational to believe that they would be 
disinclined to its support. 

If, on the contrary, the insurrection should pervade a whole state, 
or a principal part of it, the employment of a different kind of 
force might become unavoidable. It appears that Massachusetts 
found it necessary to raise troops for suppressing the disorders 
within that state : that Pennsylvania, from the mere apprehension 
of commotions among a part of her citizens, has thought proper to 
have recourse to the same measure. Suppose the state of New 
, York had been inclined to reestablish her lost jurisdiction over the 
inhabitants of Yermont ; could she have hoped for succeais in such 
an enterprise from the efforts of the militia alone ? Would she 
not have been compelled to raise and to maintain a more regular 
force for the execution of her design ? If it must then be admit- 
ted, that the necessity of recurring to a force different from the 
militia, in cases of this extraordinary nature, is applicable to the 
state governments themselves, why should the possibility, that the 



THE FEDERALIST, 125 

national government might be under a like necessity in similar 
extremities, be made an objection to its existence ? Is it not sur- 
prising that men who declare an attachment to the union in the 
abstract, should urge, as an objection to the proposed constitu- 
tion, what applies with tenfold weight to the plan for which they 
contend ; and what, as far as it has any foundation in truth, is 
an inevitable consequence of civil society upon an enlarged scale ? 
Who would not prefer that possibility, to the unceasing agita- 
tions, and frequent revolutions, which are the continual scourges 
of petty republics ? 

Let us pursue this examination in another light. Suppose, in 
lieu of one general system, two or three, or even four confedera- 
cies were to be formed, would not the same difficulty oppose it- 
self to the operation of either of these confederacies ? Would 
not each of them be exposed to the same casualties ; and when 
these happened, be obliged to have recourse to the same expedi- 
ents for upholding its authority, which are objected to a govern- 
ment for all the states ? Would the militia, on this supposition, be 
more ready or more able to support the federal authority, than in 
the case of a general union ? All candid and intelligent men 
must, upon due consideration, acknowledge that the principle of 
the objection is equally applicable to either of the two cases ; and 
that whether we have one government for all the states, or differ- 
ent governments for different parcels of them, or as many uncon- 
nected governments as there are states, there mi^ht sometimes be 
a necessity to make use of a force constituted differently from 
the militia, to preserve the peace of the community, and to main- 
tain the just authority of the laws against those violent invasions 
of them, which amount to insurrections and rebellions. 

Independent of all other reasonings upon the subject, it is a 
full answer to those who require a more peremptory provision 
against military establishments in time of peace, to say, that the 
whole power of the proposed government is to be in the hands 
of the representatives of the people. This is the essential, and 
after all, only efficacious security for the rights and privileges of 
the people, which is attainable in civil society.* 

If the representatives of the people betray their constituents, 
there is then no resource left but in the exertion of that original 
ri^ht of self-defence, which is paramount to all positive forms of 
government ; and which, against the usurpation of the national 
rulers, may be exerted with an infinitely better prospect of success 
than against those of the rulers of an individual state. In a single 
state, if the persons entrusted with supreme power become usurp- 
ers, the different parcels, subdivisions, or districts of which it con- 
sists, having no distinct government in each, can take no regular 
measures for defence. The citizens must rush tumultuously to 

* Its full efficacy will be examined hereafter. 



126 THE FEDERALIST. 

arms, without concert, .without system, without resource ; except 
in their courage and despair. The usurpers, clothed with the forms 
of legal authority, can too often crush the opposition in embryo. 
The smaller the extent of territory, the more difficult will it be for> 
the people to form a regular, or systematic plan of opposition ; and 
the more easy will it be to defeat their early efforts. Intelligence 
can be more speedily obtained of their preparations and move- 
ments ; and the military force in the possession of the usurpers, 
can be more rapidly directed against the part where the opposition 
has begun. In this situation, there must be a peculiar coinci- 
dence of circumstances to ensure success to the popular resistance. 

The obstacles to usurpation, and the facilities of resistance in- 
crease with the increased extent of the state ; provided the citizens 
understand their rights, and are disposed to defend them. The 
natural strength of a people in the large community, in proportion 
to the artificial strength of the governm'ent, is greater than in a 
small ; and of course more competent to a struggle with the at- 
tempts of the government to establish a tyranny. But in a confed- 
eracy, the people, without exaggeration, may be said to be entirely 
the masters of their own fate. Power being almost always the 
rival of power, the general government will at all times, stand rea- 
dy to check the usurpations of the state governments; and these 
will have the same disposition towards the general government. 
The people, by throwing themselves into either scale, will infallibly 
make it preponderate. If their rights are invaded by either, they 
can make use of the other, as the instrument of redress. How 
wise will it be in them, by cherishing the union, to preserve to 
themselves an advantage which can never be too highly prized ! 
/Ys.It may safely be received as an axiom in our political system, 
that the state governments will, in all possible contingencies, 
afford complete security against invasions of the public liberty by 
the national authority. Projects of usurpation cannot be masked 
under pretences so likely to escape the penetration of select 
bodies of men, as of the people at large. The legislatures Will 
have better means of information ; they can discover the danger 
at a distance ; and possessing all the organs of civil power, and 
the confidence of the people, they can at once adopt a regular 
plan of opposition, in which they can combine all the resources 
of the community. They can readily communicate with each 
other in the different states ; and unite their common forces, for 
the protection of their common liberty. 

The great extent of the country is a further security. We have 
already experienced its utility against the attacks of a foreign ene- 
my. And it would have precisely the same effect against the enter- 
prises of ambitious rulers in the national councils. If the federal 
army should be able to quell the resistance of one state, the distant 
states would have it in their power to make head with fresh forces. 



THE FEDERALIST. 127 

The advantages obtained in one place must be abandoned, to sub- 
due the opposition in others : and the moment the part which 
had been reduced to submission was left to itself, its efforts would 

be renewed, and its resistance revive. ^ 

We should recollect that, the extent of the military force must, 
at all events, be regulated by the resources of the country. For a 
long time to come, it will not be possible to maintain a large army ; 
and as the means of doing this increase, the population and natu- 
ral strength of the community will proportionably increase. When 
will the time arrive, that the federal government can raise and 
maintain an army capable of erecting a despotism over the great 
body of the people of an immense empire, who are in a situation 
through the medium of their state governments, to take measures 
for their own defence, with all the celerity, regularity, and sys- 
tem of independent nations ? The apprehension may be consid- 
ered as a disease, for which there can be found no cure in the re- 
sources of argument and reasoning. PUBLIUS. 



BY ALEXANDER HAMILTON. 
CONCERNING THE MILITIA. 

The power of regulating the militia, and of commanding its 
services in times of insurrection and invasion, are natural incidents 
to the duties of superintending the common defence, and of 
watching over the internal peace of the confederacy. 

It requires no skill in the science of war to discern, that uni- 
formity in the organization and discipline of the militia would be 
attended with the most beneficial effects, whenever they were call- 
ed into service for the public defence. It would enable them to 
discharge the duties of the camp and of the field, with mutual 
intelligence and concert — an advantage of peculiar moment in the 
operations of an army : and it would fit them much sooner to ac- 
quire the degree of proficiency in military functions, which would 
be essential to their usefulness. This desirable uniformity can only 
be accomplished, by confiding the regulation of the militia to the 
direction of the national authority. It is, therefore, with the most 
evident propriety, that the plan of the convention proposes to em- 
power the union "to provide for organizing, arming and disciplin- 
" ing the militia, and for governing such part of them as may be 
" employed in the service of the United States, reserving to the 
" states respectively the appointment of the officers^ and the aii' 



128 THE FEDERALIST. 

'' thority of training the militia according to the discipline pre- 
" scribed by congress." 

Of the different grounds which have been taken in opposition to 
this plan, there is none that was so little to have been expected, or 
is so untenable in itself, as the one from which this particular pro- 
vision has been attacked. If a well regulated militia be the most 
natural defence of a free country, it ought certainly to be under the 
regulation and at the disposal of that body, which is constituted 
the guardian of the national security. If standing armies are dan- 
gerous to liberty, an efficacious power over the militia, in the same 
body, ought, as far as possible to take away the inducement and 
.the pretext, to such unfriendly institutions. If the federal govern- 
ment can command the aid of the militia in those emergencies, 
which call for the military arm in support of the civil magistrate, it 
can the better dispense with the employment of a different kind 
of force. If it cannot avail itself of the former, it will be obliged 
to recur to the latter. To render an army unnecessary, will be a 
more certain method of preventing its existence, than a thousand 
prohibitions upon paper. 

In order to cast an odium upon the power of calling forth the 
militia to execute the laws of the union, it has been remarked, that 
there is nowhere any provision in the proposed constitution for re- 
quiring the aid of the posse comitatus, to assist the magistrate in 
the execution of his duty ; whence it has been inferred, that mili- 
tary force was intended to be his only auxiliary. There is a strik- 
ing incoherence in the objections which have appeared, and some- 
times even from the same quarter, not much calculated to inspire a 
very favorable opinion of the sincerity or fair dealing of their au- 
thors. The same persons, who tell us in one breath, that the pow- 
ers of the federal government will be despotic and unlimited, in- 
form us in the next, that it has not authority sufficient even to call 
out the POSSE COMITATUS. The latter, fortunately, is as much short 
of the truth as the former exceeds it. It would be as absurd to 
doubt, that a right to pass all laws necessaj^y and proper to exe- 
cute its declared powers, would include that of requiring the as- 
sistance of the citizens to the officers who may be entrusted with 
the execution of those laws ; as it would be to believe, that a right 
to enact laws necessary and proper for the imposition and collec- 
tion of taxes, would involve that of varying the rules of descent 
and of the alienation of landed property, or of abolishing the trial 
by jury in cases relating to it. It being therefore evident, that the 
supposition of a want of power to require the aid of the posse 
COMITATUS is entirely destitute of color, it will follow, that the con- 
clusion which has been drawn from it in its application to the au- 
thority of the federal government over the militia, is as uncandid 
as it is illogical. What reason could there be to infer, that force 
was intended to be the sole instrument of authority, merely be- 



THE FEDERALIST. 129 

cause there is a power to make use of it when necessary ? What 
shall we think of the motives, which could induce men of sense 
to reason in this extraordinary manner ? How shall we prevent 
a conflict between charity and conviction ? 

By a curious refinement upon the spirit of republican jealousy, 
we are even taught to apprehend danger from the militia itself, in 
the hands of the federal government. It is observed, that select 
corps may be formed, composed of the young and the ardent, who 
may be rendered subservient to the views of arbitrary power. 
What plan for the regulation of the militia may be pursued by 
the national government, is impossible to be foreseen. But so far 
from viewing the matter in the same light with those who object 
to select corps as dangerous, were the constitution ratified, and 
were I to deliver my sentiments to a member of the federal legis- 
lature on the subject of a militia establishment, I should hold 
to him in substance the following discourse : — 

" The project of disciplining all the militia of the United 
" States, is as futile as it would be injurious, if it were capable 
'■'• of being carried into execution. A tolerable expertness in 
" military movements, is a business that requires time and practice. 
" It is not a day, nor a week, nor even a month, that will suffice 
" for the attainment of it. To oblige the great body of the yeo- 
" manry, and of the other classes of the citizens, to be under arms 
''ibr the purpose of going through military exercises and evolutions, 
'' as often as might be necessary to acquire the degree of perfection 
*' which would entitle them to the character, of a well-regulated mi- 
" litia, would be a real grievance to the people, and a serious pub- 
" lie inconvenience and loss. It would form an annual deduction 
*' from the productive labor of the country, to an amount, which, 
" calculating upon the present numbers of the people, would not 
'' fall far short of a million of pounds. To attempt a thing which 
*' would abridge the mass of labor and industry to so considera- 
*' ble an extent, would be unwise : and the experiment, if made, 
^' could not succeed, because it would not long be endured. Little 
'■'■ more can reasonably be aimed at, with respect to the people at 
^' large, than to have them properly armed and equipped ; and in 
" order to see that this be not neglected, it will be necessary to 
*' assemble them once or twice in the course of a year. 

" But though the scheme of disciplining the whole nation must 
*' be abandoned as mischievous or impracticable ; yet it is a matter 
^' of the utmost importance, that a well-digested plan should, as 
'■' soon as possible, be adopted for the proper establishment of the 
" militia. The attention of the government ought particularly to 
" be directed to the formation of a select corps of moderate size, 
" upon such principles as will really fit it for service in cases of 
" need. By thus circumscribing the plan, it will be possible to have 
*•' an excellent body of well-trained militia, ready to take the field 

ir 



130 THE FEDERALIST. 

" whenevei" the defence of the state shall require it. This will not 
" only lessen the call for military establishments : but if circum- 
'' stances should at any time oblige the government to form an 
" army of any magnitude, that army can never be formidable to 
" the liberties of the people, \thile there is a large body of citi- 
" zens, little, if at all, inferior to them in discipline and the use of 
" arms, who stand ready to defend their own rights, and those of 
" their fellow-citizens. This appears to me the only substitute 
" that can be devised for a standing army ; and the best possible 
" security against it, if it should exist." 

Thus differently from the adversaries of the proposed constitu- 
tion should I reason on the same subject ; deducing arguments 
of safety from the very sources which they represent as fraught 
with danger and perdition. But how the national legislature may 
' reason on the point, is a thing which neither they nor 1 can foresee. 

There is something so far fetched, and so extravagant, in the idea 
of danger to liberty from the militia, that one is at a loss, whether 
to treat it with gravity or with raillery : whether to consider it as a 
mere trial of skill, like the paradoxes of rhetoricians ; as a disin- 
genuous artifice, to. instill prejudices at any price ; or as the serious 
offspring of political fanaticism. Where, in the name of common 
sense, are our fears to end, if we may not trust our sons, our bro- 
thers, our neighbors, our fellovz-citizens ? What shadow of dan- 
ger can there be from men who are daily mingling with the rest of 
their countrymen, and who participate with them in the same feel- 
ings, sentiments, habits and interests ? What reasonable cause of 
apprehension can be inferred from a power in the union to pre- 
scribe regulations for the militia, and to command its services when 
necessary ; while the particular states are to have the sole and ex- 
clusive appointment of the officers 1 If it were possible seriously 
to indulge a jealousy of the militia, upon any conceivable estab- 
lishment under the federal government, the circumstance of the 
officers being in the appointment of the states, ought at once to 
extinguish it. There can be no doubt, that this circumstance will 
always secure to them a preponderating influence over the militia. 

In reading many of the publications against the constitution, a 
man is apt to imagine that he is perusing some ill-written tale or 
romance ; which, instead of natural and agreeable images, exhib- 
its to the mind nothing but frightful and distorted shapes — 
" Gorgons, Hydras and Chimeras dire;" 

discoloring and disfiguring whatever it represents, and tralisform- 
ing every thing it touches into a mons.ter. 

A sample of this is to be observed in the exaggerated and im- 
probable suggestions which have taken place respecting the power 
of calling for the services of the militia. That of New Hamp- 
shire is to be marched to Georgia, of Georgia to New Hampshire, 
of New York to Kentucky, and of Kentucky to lake Cham plain. 



THE FEDERALIST. 131 

Nay, the debts due to the French and Dutch, are to be paid in 
mihtia-men instead of Louis d'ors and ducats. At one moment, 
there is to be a large army to lay prostrate the liberties of the 
people ; at another moment, the militia of Virginia are to be 
dragged from their homes, five or six hundred miles, to tame the 
republican contumacy of Massachusetts; and that of Massachu- 
setts is to be transported an equal distance, to subdue the refrac- 
tory haughtiness of the aristocratic Virginians. Do the persons 
who raveat this rate, imagine, that their art or their eloquence 
can impose any conceits or absurdities upon the people of Amer- 
ica for infallible truths? 

If there should be an army to be made use of as the engine of 
despotism, what need of the militia? If there should be no 
army, whither would the militia, irritated at being required to un- 
dertake a distant and distressing expedition, for the purpose of riv- 
eting the chains of slavery upon a part of their countrymen, direct 
their course, but to the seat of the tyrants, who had meditated so 
foolish as well as so wicked a project ; to crush them in their 
imagined entrenchments of power and make them an example of 
the just vengeance of an abused and incensed people ? Is this the 
way in which usurpers stride to dominion over a numerous and 
enlightened nation ? Do they begin by exciting the detestation 
of the very instruments of their intended usurpations? Do they 
usually commence their career by wanton and disgustful acts of 
power, calculated to answer no end, but to draw upon themselves 
universal hatred and execration ? Are suppositions of this sort, 
the sober admonitions of discerning patriots to a discerning peo- 
ple ? Or are they the inflammatory ravings of chagrined incen- 
diaries, or distempered enthusiasts? If we were even to suppose 
the national rulers actuated by the most ungovernable ambition, it 
is impossible to believe that they would employ such preposterous 
means to accomplish their designs. 

In times of insurrection, or invasion, it would be natural and 
proper, that the militia of a neighboring state should be marched 
into another, to resist a common enemy, or to guard the republic 
against the violences of faction or sedition. This was frequently 
the case, in respect to the first object, in the course of the late 
war ; and this mutual succor is, indeed, a principal end of our po- 
litical association. If the power of affording it be placed under 
the direction of the union, there will be no danger of a supine 
and listless inattention to the dangers of a neighbor, till its near 
approach had superadded the incitements of self-preservation, to 
the too feeble impulses of duty and sympathy. PUBLIUS. 



132 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 
CONCERNING TAXATION. 

It has been already observed, that the federal government 
ought to possess the power of providing for the support of the 
national forces ; in which proposition was intended to be includ- 
ed the expense of raising troops, of building and equipping fleets, 
and all other expenses in anywise connected with military ar- 
' rangements and operations. But these are not the only objects 
to which the jurisdiction of the union, in respect to revenue, must 
necessarily be empowered to extend. , It must embrace a provis- 
ion for the support of the national civil list ; for the payment of 
the national debts contracted, or that may be contracted ; and, in 
general, for all those matters which will call for disbursements 
out of the national treasury. The conclusion is, that there must 
be interwoven, in the frame of the government, a general power 
of taxation, in one shape or another. 
/ Money is with propriety coiisidered as the vital principle of the 
\ body politic ; as that which sustains its life and motion, and ena- 
bles it to perform its most essential functions. A complete power 
therefore, to procure a regular and adequate supply of revenue, as 
far as the resources of the community will permit, may be regard- 
ed as an indispensable ingredient in every constitution. From a 
deficiency in this particular, one of two evils must ensue ; either 
the people must be subjected to continual plunder, as a substitute 
for a more eligible mode of supplying the public wants, or the 
government must sink into a fatal atrophy, and in a short course 
of time perish. 

In the Ottornan or Turkish empire, the sovereign, though in 
other respects absolute master of the lives and fortunes of his sub- 
jects, has no right to impose a new tax. The consequence is, 
that he permits the bashaws or governor's of provinces to pillage 
the people at discretion ; and, in turn, squeezes out of them the 
sums of which he stands in need, to satisfy his own exigencies, 
and those of the state. In America, from a like cause, the gov- 
ernment of the union has gradually dwindled into a state of decay, 
approaching nearly to annihilation. Who can doubt, that the 
happiness of the people in both countries would be promoted by 
competent authorities in the proper hands, to provide the reve- 
nues which the necessities of the public might require ? 

The present confederation, feeble as it is, intended- to repose iu 
the United States an unlimited power of providing for the pecunia- 
ry wants of the union. But proceeding upon an erroneous princi- 
ple, it has been done in such a manner as entirely to have frustrat- 
ed the intention. Congress, by the articles which compose that 
compact, (as has been already stated,) are authorized to ascertain 
and call for any suras of paoney necessary, in their judgment, to 



THE FEDERALIST. 133 

the service of the United States ; and their reqnisitions, if con- 
formable to the rule of apportionment, are, in every constitutional 
sense, obligatory upon the states. ' These have no right to ques- 
tion the propriety of the demand ; nd discretion beyond that of 
devising the ways and means of furnishing the sums demanded. 
But though this be strictly and truly the case ; though the as- 
sumption of such a right would be an infringement of the arti- 
cles of union ; though it may seldom or never have been avow- 
edly claimed ; yet in practice it has been constantly exercised ; 
and would continue to be so, as long as the revenues of the con- 
federacy should remain dependent on the intermediate agency of 
its members. What the consequences of the system have been, 
is within the knowledge of every man, the least conversant in 
our public affairs, and has been abundantly unfolded in different 
parts of these inquiries. It is this which has chiefly contributed 
to reduce us to a situation, that affords ample cause of mortifica- 
tion to ourselves, and of triumph to our enemies. 

What remedy can there be for this situation, but in a change 
of the system which has produced it — in a change of the falla- 
cious and delusive system of quotas and requisitions ? What, 
substitute can there be imagined for this igiiis fatuns in finance, 
but that of permitting the national government to raise its own 
revenues by the ordinary methods of taxation, authorized in eve- 
ry well ordered constitution of civil government ? Ingenious 
men may declaim with plausibility on any subject : but no hu- 
man ingenuity can point out any other expedient to rescue us 
from the inconveniences and embarrassments, naturally resulting 
from defective supplies of the public- treasury. 

The more intelligent adversaries of the new constitution admit 
the force of this reasoning ; but they qualify their admission, by a 
distinction between what they call internal and external taxations. 

The former they would reserve to the state governments ; the 
latter, which they explain into commercial imposts, or rather duties 
on imported articles, they declare themselves willing to concede to 
the federal head. This distinction, however, would, violate that 
fundamental maxim of good sense and sound policy, which dictates 
that every power ought to be proportionate to its object ; and would 
still leave the general government in a kind of tutelage to the state 
governments, inconsistent with every idea of vigor or efficiency. 
Who can pretend that commercial imposts are, or would be, alone 
equal to the present and future exigencies of the union ? Taking 
into the account the existing debt, foreign and domestic, upon any 
plan of extinguishment, which a man moderately impressed with 
the importance of public justice and public credit could approve, 
in addition to the establishments which all parties will acknowl- 
edge to hp necessary, we could not reasonably flatter ourselves, 
that this resource alone, upon the most approved scale, would even 



134 THE FEDERALIST. 

suffice for its present necessities. Its future necessities admit not 
of calculation or limitation ; and upon the principle more than 
once adverted to, the power of making provision for them as they 
arise ought to be equally unconfined. I believe it may be regard- 
ed as a position, warranted by the history of mankind, that in the 
usual progress of things, the necessities of a nation, in every 
stage of its existence, will he found at least equal to its resotirces. 

To say that deficiencies may be provided for by requisitions 
upon the states, is on the one hand to acknowledge that this sys- 
tem cannot be depended upon ; and on the other hand, to depend 
upon it for every thing beyond a certain limit. Those who have 
carefully attended to its vices and deformities, as they have been 
exhibited by experience, or delineated in the course of these pa- 
pers, must feel invincible repugnancy to trusting the national in- 
terests, in any degree to its operation. Whenever it is brought 
into activity, its inevitable tendency must be to enfeeble the union, 
and sow the seeds of discord and contention between the federal 
head and its members, and between the members themselves. 
Can it be expected that the deficiencies would be better supplied 
in this mode, than the total wants of the union have heretofore 
been supplied, in the same mode ? It ought to be recollected, that 
if less will be required from the states, they will have proportion- 
ably less means to answer the demand. If the opinions of those 
who contend for the distinction which has been mentioned, were 
to be received as evidence of truth, one would be led to conclude, 
that there was some known point in the economy of national af- 
fairs, at which it would be safe to stop, and to say : thus far, the 
ends of public happiness will be promoted by supplying the wants 
of government, and all beyond this is unworthy of our care or 
anxiety. How is it possible that a government, half supplied and 
always necessitous, can fulfill the purposes of its institution ; can 
provide for the security, advance the prosperity; or support the 
reputation of the commonwealth ? , How can it ever possess eith- 
er energy or stability, dignity or credit, confidence at home, or re- 
spectability abroad ? How can its administration be any thing 
else than a succession of expedients temporizing, impotent, dis- 
graceful ? How will it be able to avoid a frequent sacrifice of its 
engagements to immediate necessity ? How can it undertake or 
execute any liberal or enlarged plans of public good ? 

Let us attend to what would be the effects of this situation, in 
the very first war in which we should happen to be engaged. We 
will presume, for argument sake, that the revenue arising from the 
import duties answers the purposes of a provision for the public 
debt, and of a peace establishment for the union. Thus circum- 
stanced, a war breaks out. What would be the probable conduct 
of the government in such an emergency ? Taught by^experience 
that proper dependence could not be placed on the success of re- 



THE FEDERALIST. 135 

qiiisitions ; niiable by its own authority to lay hold of fresh resour- 
ces, and urged by considerations of national danger, would it not 
be driven to the expedient of diverting the funds already appropri- 
ated, from their proper objects, to the defence of the state ? It is 
not easy to see how a step of this kind could be avoided ; and if it 
should be taken, it is evident that it would prove the destruction of 
public credit at the very moment that it was become essential to 
the public safety. To imagine at such a crisis credit might be dis- 
pensed with, would be the extreme of infatuation. In the modern 
system of war, nations the most wealthy are obliged to have re- 
course to large loans. A country so little opulent as ours, must 
feel this necessity in a much stronger degree. But who would lend 
to a government, that prefaced its overtures for borrowing by an 
act which demonstrated that no reliance could be placed on the 
steadiness of its measures for paying ? The loans it might be able 
to procure, would be as limited in their extent, as burthensome in 
their conditions. They would be made upon the same principles 
that usurers commonly lend to bankrupt and fraudulent debtors — - 
with a sparing hand and at enormous premiums. 

It may perhaps be imagined, that from the scantiness of the re- 
sources of the country, the necessity of diverting the established 
funds in the case supposed, would exist ; though the national gov- 
ernment should possess an unrestrained power of taxation. But 
two considerations will serve to quiet all apprehensions on this 
head ; one is, that we are sure the resources of the community, in 
their full extent, will be brought into activity for the benefit of 
the union; the other is, that whatever deficiencies there may be, 
can without difficulty be supplied by loans. 

The power of creating, by its own authority, new funds from 
new objects of taxation, would enable the national government to 
borrow, as far as its necessities might require. Foreigners, as well 
as the citizens of America, could then reasonably repose confi- 
dence in its engagements : but to depend upon a government, that 
must itself depend upon thirteen other governments, for the means 
of fulfilling its contracts, when once its situation is clearly under- 
stood, would require a degree of credulity not often to be met 
with in the pecuniary transactions of mankind, and little recon- 
cilable with the usual sharp-sightedness of avarice.- 

Reflections of this kind may have trifling weight with men 
who hope to see the halcyon scenes of the poetic or fabulous age 
realized in America ; but to those who believe we are likely to 
experience a common portion of the vicissitudes and calamities 
which have fallen to the lot of other nations, they must appear 
entitled to serious attention. Such men must behold the actual 
situation of their country with painful solicitude, and deprecate 
the evils which ambition or revenge might, with too much facility^ 
inflict upon it. PUBLIUS. 



( 



136 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 

THE SAME SUBJECT CONTINtTED. 

In disquisitions of every kind, there are certain primary truths, 
or first principles, upon which all subsequent reasonings must de- 
pend. These contain an internal evidence, which, antecedent to 
all reflection or combination, commands the assent of the mind. 
Where it produces not this effect, it must proceed either from 
some disorder in the organs of perception, or from the influence of 
some strong interest, or passion, or prejudice. Of this nature are 
the maxims in geometry, that the whole is greater than its part ; 
that things equal to the same, are equal to one another ; that two 
straight lines cannot enclose a space ; and that all right-angles are 
equal to each other. Of the same nature, are these other maxims 
in ethics and politics, that there cannot be an effect without a 
cause ; that the means ought to be proportioned to the end ; that 
every power ought to be commensurate with its object ; that there 
ought to be no limitation of a power destined to effect a purpose 
which is itself incapable of limitation. And there are other truths 
in'the two latter sciences, which, if they cannot pretend to rank 
in the class of axioms, are such direct inferences from them and 
so obvious in themselves, and so agreeable to the natural and 
unsophisticated dictates of common sense, that they challenge 
the assent of a sound and unbiased mind, with a degree of force 
and conviction almost equally irresistible. 

The objects of geometrical inquiry are so entirely abstracted 
from those pursuits which stir up and put in motion the unruly pas- 
sions of the hiiman heart, that mankind, without difficulty, adopt 
not only the more simple theorems of the science, but even those 
abstruse paradoxes which, however they may appear susceptible of 
demonstration, are at variance with the natural conceptions which 
the mind, without the aid of philosophy, would be led to entertain 
upon the subject. The infinite divisibility of matter, or, in 
other words, the infinite divisibility of a finite thing, extend- 
ing even to the minutest atom, is a point agreed among geome- 
tricians ; though not less incomprehensible to common sense, than 
any of those mysteries in religion, against which the batteries of 
infidelity have been so industriously levelled. 

But in the sciences of me^mls and politics, men are found far less 
tractable. To a certain degree, it is right and useful that this 
should be the case. Caution and investigation are a necessary 
armor against error and imposition. But this untractableness may 
be carried too far, and may degenerate into obstinacy, perverseness 
or disingenuity. Though it cannot be pretended, that the princi- 



THE FEDERALIST. 137 

pies of moral and political knowledge have, in general, the same 
degree of certainty with those of the mathematics ; yet they have 
much better claims in this respect, than, to judge from the con- 
duct of men in particular situations, we should be disposed to 
allow them. The obscurity is much oftener in the passions and 
prejudices of the reasoner, than in the subject. Men, upon too 
many occasions, do not give their own understandings fair play ; 
but yielding to some untoward bias, they entangle themselves in 
words, and confound themselves in subtleties. 

How else could it happen, (if we admit the objectors to be 
sincere in their opposition,) that positions so clear as those which 
manifest the necessity of a general power of taxation in the gov- 
ernment of the union, should have to encounter any adversaries 
among men of discernment ? Though these positions have been 
elsewhere fully stated, they will perhaps not be improperly re- 
capitulated in this place, as introductory to an examination of 
what may have been offered by way of objection to them. They 
are in substance as follows : — 

A government ought to contain in itself every power requisite 
to the full accomplishment of the objects committed to its care, 
and the complete execution of the trusts for which it is responsi- 
ble ; free from every other control, but a regard to the public 
good, and to the sense of the people. 

As the duties of superintending the national defence, and of 
securing the public peace against foreign or domestic violence, 
involve a provision for casualties and dangers, to which no pos- 
sible limits can be assigned, the power of making that provision 
ought to know no other bounds than the exigencies of the nation, 
and the resources of the community. 

As revenue is the essential engine by which the means of an- 
swering the national exigencies must be procured, the power of 
procuring that article in its full extent must necessarily be com- 
prehended in that of providing for those exigencies. 

As theory and practice conspire to prove, that the power of 
procuring revenue is unavailing, when exercised over the states 
in their collective capacities, the federal goverimient must of 
necessity be invested with an unqualified power of taxation in 
the ordinary modes. 

Did not experience evince the contrary, it would be natural to 
conclude, that the propriety of a general power of taxation in 
the national government might safely be permitted to rest on the 
evidence of these propositions, unassisted by any additional argu- 
ments or illustrations. But we find, in fact, that the* antagonists 
of the proposed constitution, so far from acquiescing in their just- 
ness or truth, seem to make their principal and most zealous 
effort against this part of the plan. It may therefore be satisfac- 
tory to analyze the arguments with which they combat it. 
18 



138 THE FEDERALIST. 

Those of them which have been most labored with that view, 
seem in substance to amount to this : " It is not true, because the 
" exigencies of the union may not be susceptible of limitation, that 
" its power of laying taxes ought to be unconfined. Revenue is 
" as requisite to the purposes of the local administrations, as to 
•' those of the union ; and the former are at least of equal import- 
" ance with the latter to the happiness of the people. It is there- 
" fore as necessary that the state governments should be able to 
" command the means of supplying their wants, as that the nation- i 
" al government should possess the like faculty, in respect to the 
" wants of the union. But an indefinite power of taxation in the 
" latte}^ might, and probably would in time, deprive the former of 
" the means of providing for their own necessities; and would sub- 
" ject them entirely to the mercy of the national legislature. As 
" the laws of the union are to become the supreme law of the 
" land; as it is to have power to pass all laws that may be neces- 
" SAKY for carrying into execution the authorities with which it is 
" proposed to vest it ; the national government might at any time 
" abolish the taxes imposed for state objects, upon the pretence of 
•'' an interference with its own. It might allege a necessity of do- 
" ing this, in order to give efficacy to the national revenues: and 
" thus all the resources of taxation might by degrees, become the 
" subjects of federal monopoly, to the entire exclusion and de- 
" struction of the state governments." 

This mode of reasoning appears sometimes to turn upon the sup- 
position of usurpation in the national government: at other times, 
it seems to be designed only as a deduction from the constitutional 
operation of its intended powers. 'It is only in the latter light, 
that it can be admitted to have any pretensions to fairness. The 
moment we launch into conjectures about the usurpations of the 
federal government, we get into an unfathomable abyss, and fairly 
put ourselves out of the reach of all reasoning. Imagination may 
range at pleasure, till it gets bewildered amidst the labyrinths of 
an enchanted castle, and knows not on which side to turn, to es- 
cape from the apparitions which itself has raised. Whatever may 
be the limits or modifications of the powers of the union, it is easy 
to imagine an endless train of possible dangers ; and by indulging 
an excess of jealousy and timidity, we may bring ourselves to a 
state of absolute scepticism and irresolution. I repeat here, what 
I have observed in substance in another place, that all observations 
founded upon the danger of usurpation, ought to be referred to the 
composition and structure of the government, not to the nature 
and extent of its powers. The state governments, by their original 
constitutions, are invested with complete sovereignty'. In what 
does our security consist against usurpations from that quarter ? 
Doubtless in the manner of their formation, and in a due depen- 
dence of those who are to administer them upon the people. . If 



THE FEDERALIST. 139 

the proposed construction of the federal government be found, 
upon an impartial examination of it, to be such as to afford, to a 
proper extent, the same species of security, all apprehensions on 
the score of usurpation ought to be discarded. 

It should not be forgotten that a disposition in the state govern- 
ments to encroach upon the rights of the union, is quite as proba- 
ble as a disposition in the union to encroach upon the rights of the 
state governments. What side would be likely to prevail in such 
a conflict, must depend on-the means which the contending parties 
could employ, towards insuring success. As in republics, strength 
is always on the side of the people ; and as there are weighty rea- 
sons to induce a belief, that the state governments will commonly 
possess most influence over them, the natural conclusion is, that 
such contests will be most apt to end to the disadvantage of the 
union; and that there is greater probability of encroachments by 
the members upon the federal head, than by the federal head upon 
the members. But it is evident, that all conjectures of this kind 
must be extremely vague and fallible: and that it is by far the 
safest course to lay them altogether aside ; and to confine our atten- 
tion wholly to the nature and extent of the powers, as they are de- 
lineated in the constitution. Every thing beyond this must be left 
to the prudence and firmness of the people ; who, as they will hold 
the scales in their own hands, it is to be hoped, will always take 
care to preserve the constitutional equilibrium between the general 
and the state governments. Upon this ground, which is evidently 
the true one, it will not be difficult to obviate the objections, 
which have been made to an indefinite power of taxation in the 
United States. PUBLIUS. 



BY ALEXANDER HAMILTON. 

THE SAME SUBJECT CONTINUED. 

Although I am of opinion that there would be no real danger 
of the consequences to the state governments, which seem to be 
apprehended from a power in the union to control them in the 
levies of money ; because I am persuaded that the sense of the 
people, the extreme hazard of provoking the resentments of the 
state governments, and a conviction of the utility and necessity of 
local administrations, for local purposes, \yould be a complete bar- 
rier against the oppressive use of such a power: yet 1 am willing 
here to allow, in its full extent, the justness of the reasoning. 



140 THE FEDERALIST. 

which requires, that the individual states should possess an inde- 
pendent and uncontrollable authority to raise their, own revenues 
for the supply of their own wants. And making this concession, I 
affirm, that (with the sole exception of duties on imports and ex- 
ports) they would, under the plan of the convention, retain that 
authority in the most absolute and unqualified sense ; and that an 
attempt on the part of the national government to abridge them in 
the exercise of it, would be a violent assumption of power, 
unwarranted by any article or clause o£ its constitution. 

An entire consolidation of the states ipto one complete national 
sovereignty, would imply an entire subordination of the parts ; and 
whatever powers might remain in them, would be altogether de- 
pendent on the general will. But as the plan of the convention 
aims only at a partial union or consolidation, the state goveruments 
would clearly retain all the rights of sovereignty which they before 
had, and which were not, by that act, exclusively delegated to the 
United States. This exclusive delegation, or rather this alienation 
of state sovereignty, would only exist in three cases : where the 
constitution in express terms granted an exclusive authority to the 
union ; where it granted in one instance, an authority to the 
union, and in another, prohibited the states from exercising the 
like authority ; and where it granted an authority to the union, 
to which a similar authority in the states would be absolutely 
and totally contradictory and repugnant. I use these terms 
to distinguish this last case from another which might appear 
to resemble it, but which would, in fact, be essentially diff"er- 
ent : I mean where the exercise of a concurrent jurisdiction, might 
be productive of occasional interferences in the 'policy of any 
branch of administration, but would not imply any direct contra- 
diction or repugnancy in point of constitutional authority. These 
three cases of exclusive jurisdiction in the federal government, 
may be exemplified by the following instances : the last clause but 
one in the eighth section of the first article provides expressly, that 
congress shall exercise " exclusive legislation" over the district to 
be appropriated as'the seat of government. This answers to the 
first case. The first clause of the same section empowers congress 
"^0 lay and collect taxes, duties, imposts, and excises f^ and 
the second clause of the tenth section of the same article declares, 
that " no state shall, without the consent of congress, lay any iin~ 
"posts or duties on imports or exports, except for the purpose of 
" executing its inspection laws." Hence would result an exclusive 
power in the union to lay duties on imports and exports, with the 
particular exception mentioned ; but this power is abridged by 
another clause, which declares, that no tax or duty shall be laid on 
articles exported from any state ; in consequence of which qualifi- 
cation, it now only exteiids to the duties on imports. This an- 
swers to the second case. The third will be found in that clause 



THE FEDERALIST. 141 

which declares that congress shall have power " to establish an 
UNIFORM RULE of naturalization throughout the United. States." 
This must necessarily be exclusive: because if each state had pow- 
er to prescribe a distinct rule, there could be no uniform rule. 
A case which may perhaps be thought to resemble the latter, but 
Avhich is in fact widely different, affects the question immediately 
under consideration. I mean the power of* imposing taxes on all 
articles other than exports and imports. This, I contend, is mani- 
festly a concurrent and coequal authority in the United States 
and in the individual states. There is plainly no expression in 
the granting clause, which makes that power exclusive in the union. 
There is no independent clause or sentence which prohibits the 
states from exercising it. So fas is this from being the case, that a 
plain and conclusive argument to the contrary is deducible, from 
the restraint laid upon the states in relation to duties on imports 
and exports. This restriction implies an admission, that if it were 
not inserted, the states would possess the power it excludes ; and 
it implies a further admission, that as to all other taxes, the author- 
ity of the states remains undiminished, in. any other view it 
would be both unnecessary and dangerous. It would be unneces- 
sary, because if the grant to the union of the power of laying such 
duties implied the exclusion of the states, or even their subordi- 
nation in this particular, there could be no need of such a restric- 
tion : it would be dangerous, because the introduction of it leads 
directly to the conclusion which has been mentioned, and which, 
if the reasoning of the objectors be just, could not have been intend- 
ed ; I mean that the states, in all cases to which the restriction did 
not apply, would have a concurrent power of taxation with the 
union. The restriction in question amounts to what lawyers call a 
negative pregnant ; there is a ?iegatio?i of one thing, and an af- 
jirmance of another : a negation of the authority of the states to 
impose taxes on imports and experts, and an affirmance of their 
authority to impose them on all other articles. It would be mere 
sophistry to argue that it was meant to exclude them absolutely 
from the imposition of taxes of the former kind, and to leave them 
at liberty to lay others subject to the control of the national legisla- 
ture. The restraining or prohibitory clause only says, that they 
shall not, without the consent of congress, lay such duties; and if 
we are to understand this in the sense last mentioned, the con- 
stitution would then be made to introduce a formal provision, for 
the sake of a very absurd conclusion ; which is, that the states, 
loith the consent of the national legislature, might tax imports and 
exports ; and that they might tax every other article, unless con- 
trolled by the same body. If this was the intention, why was it 
not left, in the first instance, to what is alleged to be the natural 
operation of the original clause, conferring the general power of 
taxation upon the union ? It is evident that this could not have been 



14-2 THE FEDERALIST. 

the intention, and that it will not bear a construction of the 
kind. 

As to a supposition of repugqancy between the power of taxa- 
tion in the states and in the union, it cannot be supported in that 
sense which would be requisite to work an exclusion of the states. 
It is indeed possible that a tax might be laid on a particular article 
by a state which might render it inexpedient that a further tax 
should be laid on the same article by the union ; but it would not 
imply a constitutional inability to impose a further tax. The 
quantity of the imposition, the expediency or inexpediency of an 
increase on either side, would be mutually questions of prudence ; 
but there would be involved no direct contradiction of power. 
The particular policy of the natioiial and of the state system of 
finance might now and then not exactly coincide, and might re- 
quire reciprocal forbearances. It is not however, a mere possi- 
bility of inconvenience in the exercise of powers, but an imme- 
diate constitutional repugnancy, that can by implication alienate 
and extinguish a preexisting right of sovereignty. 

The necessity of a concurrent jurisdiction in certain cases, re- 
sults from the division of the sovereign power; and the rule that all 
authorities, of which the states are not explicitly divested in favor 
of the union, remain with them in full vigor, is not only a theoret- 
ical consequence of that division, but is clearly admitted by the 
whole tenor of the instrument which contains the articles of the 
proposed constitution. We there find, that notwithstanding the 
affirmative grants of general authorities, there has been the most 
pointed care in those cases where it was deemed improper that 
the like authorities should reside in the states to insert negative 
clauses prohibiting the exercise of them by the states. The tenth 
section of the first article consists altogether of such provisions. 
This circumstance is a clear indication of the sense of the con- 
vention, and furnishes a rule of interpretation out of the body of 
the act, which justifies the position I have advanced, and refutes 
every hypothesis to the contrary. PUBLIUS. 



ISrXJliw^BEDR XXXIII. 

BY ALEXANDER HAMILTON. 
THE SAME SUBJECT CONTINUED. 

The residue of the argument against the provisions of the con- 
stitution, in respect to taxation, is ingrafted upon the following 
clauses : The last clause of the eighth section of the first article, 
authorizes the national legislature "to make all laws which shall be 
^'■necessary dinA proper, for carrying into execution the powers by 



THE FEDERALIST. 143 

'' that constitution vested in the government of the United States, 
" or in any department or officer thereof; " and the second clause 
of the sixth article declares, •'' that the constitution and the laws 
"of the United States made in purs'iia?ice thereof, and the treat- 
" ies made by their authority, shall be the supreme law of the 
"land ; any thing in the constitution or laws of any state to the 
" contrary notwithstanding." 

These two clauses have been the source of much virulent invec- 
tive, and petulant declamation, against the proposed constitution. 
They have been held up to the people in all the exaggerated col- 
ors of misrepresentation ; as the pernicious engines by which their 
local governments were to be destroyed, and their liberties exter- 
minated ; as the hideous monster whose devouring jaws would 
spare neither sex nor age, nor high nor low, nor sacred nor pro- 
Jane ; and yet, strange as it may appear, after all this clamor, to 
those who may not have happened to contemplate them in the same 
light, it may be affirmed with perfect confidence, that the constitu- 
tional operation of the intended government would be precisely 
the same, if these clauses were entirely obliterated, as if they were 
repeated in every article. They are only declaratory of a truth, 
which would have resulted by necessary and unavoidable impli- 
cation from the very act of constituting a federal government, 
and vesting it with certain specified powers. This is so clear a 
proposition, that moderation itself can scarcely listen to the rail- 
ings which have been^ so copiously vented against this part of 
the plan, without emotions that disturb its equanimity. 

What is a power but the ability or faculty of doing a thing ? 
What is the ability to do a thing, but the power of employing 
X\\e means necessary'to its execution? What is a legislative 
power, but a power of making laws ? What are the means to 
execute a legislative power, but laws ? What is the power of 
laying and collecting taxes, but a legislative power, or a power of 
making laivs, to lay and collect taxes ? What are the proper 
means of executing such a power, but necessary and proper laws ? 

This sample train of inquiry furnishes us at once with a test of 
the true nature of the clause complained of. It conducts us to 
this palpable truth, that a power to lay and collect taxes, must be 
a power to pass all laws necessary and proper for the execution of 
that power : and what does the unfortunate and calumniated pro- 
vision in question do, more. than declare the same truth ; to wit, 
that the national legislature, to whom the power of laying and col- 
lecting taxes had been previously given, might, in the execution of 
that power, pass all laws necessary and proper to carry it into ef- 
fect ? 1 have applied these observations thus particularly to the 
power of taxation ; because it is the immediate subject under con- 
sideration, and because it is the most important of the authorities 
proposed to be conferred upon the union. But the same process 
will lead to the same result, in relation to all other powers declared 



144 , THE FEDERALIST. 

in the constitution. And it is expressly to execute these powers, 
that the sweeping clause as it has been affectedly called, authoriz- 
es the national le^slature to pass all necessary and proper laws. 
If there be any thing exceptionable, it must be sought for in the 
specific powers, upon ^yhich this general declaration is predicated. 
The declaration itself, though it may be chargeable with tautol- 
ogy or redundancy, is at least perfectly harmless. 

But SUSPICION may ask, why then was it introduced ? The an- 
swer is, that it could only have been done for greater caution, and 
to guard against all caviling refinements in those who might here- 
after feel a disposition to curtail and evade the legitimate authori- 
ties of the union. The convention probably foresaw, what it has 
been a principal aim of these papers to inculcate, that the danger 
which most threatens our political welfare is, that the state gov- 
ernments will finally sap the foundations of the union ; and might 
therefore think it necessary, in so cardinal a point, to leave noth- 
ing to construction. Whatever may have been the inducement 
to it, the wisdom of the precaution is evident from the cry which 
has been raised against it ; as that very cry betrays a disposition 
to question the great and essential truth which it is manifestly 
the object of that provision to declare. 

But it may be again asked, who is to judge of the necessity and 
propriety of the laws to be passed for executing the powers of the 
union ? I answer, first, that this question arises as well and as 
fully upon the simple grant of those powers, as upon the declara- 
tory clause : and I answer in the second place, that the national 
government, like every other, must judge, in the first instance, of 
the proper exercise of its powers ; and its constituents in the last. 
If the federal government should overpass the just bounds of its 
authority and make a tyrannical use of its powers ; the people, 
whose creature it is, must appeal to the standard they have formed 
and take such measures to redress the injury done to the constitu- 
tion, as the exigency may suggest and prudence justify. The pro- 
priety of a law, in a constitutional light, must always be determin- 
ed by the nature of the powers upon which it is founded. Sup- 
pose, by some forced construction of its authority, (which indeed 
cannot easily be imagined,) the federal legislature should attempt 
to vary the law of descent in any state ; would it not be evident, 
that in making such an attempt, it had exceeded its jurisdiction, and 
infringed upon that of the state ? Suppose, again, that upon the 
pretence of an interference with its revenues, it should undertake 
to abrogate a land tax imposed by the authority of a state ; would 
it not be equally evident, that this was an invasion of that concur- 
rent jurisdiction in respect to this species O-f tax, which the con- 
stitution plainly supposes to exist in the state governments? If 
there ever should be a doubt on this head, the credit of it will be 
entirely due to those reasoners, who in the imprudent zeal of their 



THE FEDERALIST. 145 

animosity to the plan of the convention, have labored to envelope 
it in a cloud, calculated to obscure the plainest and simplest truths. 
But it is said, that the laws of the union are to be the supreme 
laiD of the land. What inference can be drawn from this, or what 
would they amount to, if they were not to be supreme ? It is evident 
they would amount to nothing. A law, by the very meaning of 
the term, includes supremacy. It is a rule, which those to whom 
it is prescribed are bound to observe. This results from every po- 
litical association. If individuals enter into a state of society, the 
laws of that society must be the supreme regulator of their conduct. 
If a number of political societies enter into a larger political socie- 
ty, the laws which the latter may enact, pursuant to the powers 
entrusted to it by its constitution, must necessarily be supreme over 
those societies, and the individuals of whom they are composed. 
It would otherwise be a mere treaty, dependent on the good faith 
of the parties and not a government ; which is only another word 

for POLITICAL POWER AND SUPREMACY. But it will HOt folloW frOm 

this doctrine, that acts of the larger society, which are not pursu- 
ant to its constitutional powers, but which are invasions of the re- 
siduary authorities of the smaller societies, will become the supreme 
law of the land. These will be merely acts of usurpation, and 
will deserve to be treated as such. Hence we perceive, that the 
clause which declares the supremacy of the laws of the union, like 
the one we have just before considered, only declares a truth, 
which flows immediately and necessarily from the institution of a 
federal government. It will not, I presume, have escaped observa- 
tion, that it expressly confines this supremacy to laws made pur- 
suant to the constitution ; which I mention merely as an instance 
of caution in the convention ; since that limitation would have 
been to be understood, though it had not been expressed. 

Though a law, therefore, laying a tax for the use of the United 
States would be supreme in its nature, and could not legally be op- 
posed or controlled ; yet a law abrogating or preventing the collec- 
tion of a tax laid by the authority of a state, (unless upon imports 
and exports,) would not be the supreme law of the land, but an 
usurpation of a power not granted by the constitution. As far as 
an improper accumulation of taxes, on the same object, might tend 
lo render the collection difficult or precarious, this would be a mu- 
tual inconvenience, not arising from any superiority or defect of 
power on either side, but from an injudicious exercise of power by 
one or the other, in a manner equally disadvantageous to both. It 
is to be hoped and presumed, however, that mutual interest would 
dictate a concert in this respect which would avoid any material 
inconvenience. The inference from the whole is-— that the indi- 
vidual states, would under the proposed constitution, retain an in- 
dependent and uncontrollable authority to raise revenue to any ex- 
tent of which they niay stand in need, by every kind of taxation, 

19 



146 THE FEDERALIST. 

except duties on imports and exports. It will be shown in the 
next paper, that this concurrent jurisdiction in the article of 
taxation was the only admissible substitute for an entire subordi- 
nation in respect to this branch of power, of state authority t© 
that of the union. PUBLlUSe 



BY ALEXANDER HAMILTON. 

THE SAME SUBJECT CONTINUED. 

I flatter myself it has been clearly shown in my last number, 
that the particular states, under the proposed constitution, would 
have coEQ,uAL authority with the union in the article of revenue, 
except as to duties on imports. As this leaves open to the states 
far the greatest part of the resources of the community, there can 
be no color for the assertion, that they would nut possess means 
as abundant as could be desired, for the supply of their own 
wants, independent of all external control. That the field is suiR- 
ciently wide, will more fully appear, when we come to develope 
the inconsiderable share of the public expenses, for which it will 
fall to the lot of the state governments to provide. 

To argue upon abstract principles, that this coordinate authority 
cannot exist, would be to set up theory and supposition against 
fact and reality. However proper such reasonings might be, to 
show that a thing ought not to exist, they are wholly to be reject- 
ed, when they are made use of to prove that it does not exist, con- 
trary to the evidence of the fact itself It is well known, that in 
the Roman republic, the legislative authority, in the last resort, re^ 
sided for ages in two different political bodies — not as branches 
of the same legislature, but as distinct and independent legislatures ] 
in each of which an opposite interest prevailed ; in one, the patri- 
cian ; in the other, the plebeian. Many arguments might have been 
adduced, to prove the unfitness of two stich seemingly contradic- 
tory authorities, each havi\ig power to annul or repeal Xhe acts of 
the other. But a man would have been regarded as frantic, who 
should have attempted at Rome to disprove their existence. It 
will be readily understood, that I allude to the comitia centuriata 
and the comitia tributia. The former, in which the people voted 
by centuries, was so arranged as to give a superiority to the patri- 
cian interest. In the latter, in which numbers prevailed, the 
plebeian interest had an entire predominancy. And yet these 
two legislatures coexisted for ages, and the Roman republic at- 
tained to the pinnacle of human greatness. 



THE FEDERALIST. 147 

In the case particularly under consideration, there is no such 
contradiction as appears in the example cited ; there is no power 
on either side to annul the acts of the other. And in practice, 
there is little reason to appreheiid any inconvenience ; because, in 
a short course of time, the wants of the states will naturally reduce 
themselves within a verp natTOw compass ; and in the interim, 
the Uiiited States will, in all probability, find it convenient to 
abstain wholly from those objects to which the particular states 
would be inclined to resort. 

To form a more precise judgment of the true merits of this 
question, it will be well to advert to the proportion between the ob- 
jects that will require a federal provision in respect to revenue, and 
those which will require a state provision. We shall discover that 
the former are altogether unlimited : and that the latter are circum- 
seribed within very moderate bounds. In pursuing this inquiry, 
we must bear in mind, that we are not to confine our view to the 
present period, but to look forward to remote futurity. Constitu- 
tions of civil government are not to be framed upon a calculation 
of existing exigencies ; but upon a combination of these with the 
probable exigencies of ages, according to the natural and tried 
course of human affairs. Nothing therefore can be more falla- 
cious, than to infer the extent of any power proper to be lodged in 
the national government, from an estimate of its immediate neces- 
sities. There ought to be a capacity to provide for future contin- 
gencies, as they may happen ; and as these are illimitable in their 
nature, so it is impossible safely to limit that capacity. It is true 
perhaps, that a computation might be made, with sufficient accura- 
cy to answer the purpose, of the quantity of revenue requisite to 
discharge the subsisting engagements of the union, and to main- 
tain those establishments which, for some time to come, would suf- 
fice in time of peace. But would it be wise, or would it not rath- 
er be the extreme of folly to stop at this point, and to leave the 
government, entrusted with the care of the national defence, in a 
state of absolute incapacity to provide for the protection of the 
community, against future invasions of the public peace, by foreign 
war or domestic convulsions ? If we must be obliged to exceed 
this point, where can we stop short of an indefinite power of pro- 
viding for emergencies as they may arise ? Though it be easy to 
assert in general terms, the possibility of forming a rational judg- 
ment of a due provision against probable dangers ; yet we may 
safely challenge those who make the assertion, to bring forward 
their data, and may affirm, that they would be found as vague and 
uncertain as any that could be produced to establish the probable 
duration of the world. Observations, confined to the mere pros- 
pects of internal attacks, can deserve no weight; though even 
these will admit of no satisfactory calculations ; but if we mean to 
be a commercial people, it must form a part of our policy to be 

\ 



148 THE FEDERALIST. 

able one day to defend that commerce. The support of a navy, 
and of naval wars, would involve contingencies that must baffle 
all the eiforts of political arithmetic. 

Admitting that we ought to try the novel and absurd experi- 
ment in politics, of tying up the hands of government from offen- 
sive war, founded upon reasons of state ; yet certainly we ought 
not to disable it from guarding the community against the. ambi- 
tion or enmity of other nations. A cloud has been for some time 
hanging over the European world. If it should break forth into a 
storm, who can insure us that in its progress a part of its fury 
would not be spent upon us ? No reasonable man would hastily 
pronounce, that we are entirely out of its reach. Or if the com- 
bustible materials, that now seem to be collecting, should be dissi- 
pated without coming to maturity, or if a flame should be kindled 
without extending to us ; what security can we have that our 
tranquillity will long remain undisturbed from some other cause, or 
from some other quarter ? Let us recollect, that peace or war will 
not always be left to our option ; that however moderate or unam- 
bitious we may be, we cannot count upon the moderation, or hope 
to extinguish the ambition of others. Who could have imagined 
at the conclusion of the last war, that France and Britain, wearied 
and exhausted as they both were, would already have looked with 
so hostile an aspect upon each other? To judge from the history 
of mankind we shall be compelled to conclude, that the fiery and 
destructive passions of war reign in the human breast with much 
more powerful sway, than the mild and beneficent sentiments of 
peace ; and that to model our political systems upon speculations 
of lasting tranquillity, would be to calculate on tlie weaker springs 
of the human character. 

What are the chief sources of expense in every government ? 
What has occasioned that enormous accumulation of debts with 
which several of the European nations are oppressed ? The an- 
swer plainly is, wars and rebellions ; the support of those institu- 
tions, which are necessary to guard the body politic against these 
two most mortal diseases of society. The expenses arising from 
those institutions which relate to the mere domestic police of a 
state, to the support of its legislative, executive, and judiciary de- 
partments, with their different appendages, and to the encourage- 
ment of agriculture and manufactures, (which will comprehend al- 
most all the objects of state expenditure,) are insignificant in com- 
parison with those which relate to the national defence. 

In the kingdom of Great Britain, where all the ostentatious ap- 
paratus of monarchy is to be provided for, not above a fifteenth 
part of the annual income of the nation is appropriated to the 
class of expenses last mentioned : the other fourteen fifteenths are 
absorbed in the payment of the interest of debts contracted for 
carrying on the wars in which that country has been engaged, and 



THE FEDERALIST. 149 

in the maintenance of fleets and armies. If, on the one hand, it 
should be observed, that the expenses incurred in the prosecution 
of the ambitious enterprises and vainglorious pursuits of a mon- 
archy, are not a proper standard by which to judge of those which 
might be necessary in a republic ; it ought, on the other hand, to 
be remarked, that there should be as great a disproportion be- 
tween the profusion and extravagance of a wealthy kingdom in its 
domestic administration, and the frugality and economy wFiich 
in that particular, become the modest simplicity of republican 
government. If we balance a proper deduction from one side, 
against that which it is supposed ought to be made from the oth- 
er, the proportion may still be considered as holding good. 

But let us take a vfew of the large debt which we have our- 
selves contracted in a single war, and let us only calculate on a 
common share of the events which disturb the peace of nations, 
and we shall instantly perceive, without the aid of any elaborate 
illustration, that there must always be an immense disproportion 
between the objects of federal and state expenditure. It is true, 
that several of the states, separately, are incumbered with con- 
siderable debts, which are an excrescence of the late war. But 
this cannot happen again, if the proposed system be adopted ; and 
when these debts are discharged, the only call for revenue of any 
consequence, which the state governments will continue to expe- 
rience, will be for the mere support of their respective civil lists ; 
to which, if we add all contingencies, the total amount in every 
state ought to fall considerably short of a million of dollars. 

If it cannot be denied to be a just principle, that in framing a 
constitution of government for a nation, we ought, in those pro- 
visions which are designed to be permanent, to calculate, not on 
temporary, but on permanent causes of expense ; our attention 
would be directed to a provision in favor of the state governments 
for an annual sum of about one million of dollars ; while the exi- 
gencies of the union could be susceptible of no limits, even in 
imagination. In this view of the subject, by what logic can it be 
maintained, that the local governments ought to command, in per- 
petuity, an exclusive source of revenue for any sum beyond that 
which has been stated ? To extend its power further, in exclusion 
of the authority of the union, would be to take the resources of 
the community out of those hands which stood in need of them 
for the public welfare, in order to put them into other hands which 
could have no just or proper occasion for them. 

Suppose then, the convention had been inclineii to proceed up- 
on the principle of a repartition of the objects of revenue, between 
the union and its members in proportion to their comparative ne- 
cessities ; what particular fund could have been selected for the 
use of the states, that would not either have been too much or too 
little ; too little for their present, too much for their future wants ? 



150 THE FEDERALIST. 

As to the line of separation betwen external and internal taxes, 
this would leave to the states, at a rough computation, the com- 
mand of two thirds of the resources of the community, to defray 
from a tenth to a twentieth of its expenses ; and, to the union, 
one third of the resources of the community, to defray from nine 
tenths to nineteen twentieths of its expenses. If we desert this 
boundary, and content ourselves with leaving to the states an ex- 
clusive power of taxing houses and lands, there would still be a 
great disproportion between the 'means and the end ; the posses- 
sion of one third of the resources of the community to supply, at 
most, one tenth of its wants. If any fund could have been se- 
lected and appropriated, equal to and not greater than the object, 
it would have been inadequate to the discharge of the existing 
debts of the particular states, and would have left them depend- 
ent on the union for a provision for this purpose. 

The preceding train of observations will justify the position 
which has been elsewhere laid down, that " a concurrent juris- 
" DICTION in the article of taxation, was the only admissible sub- 
" stitute for an entire subordination, in respect to this branch of 
" power, of state authority to that of the union." Any separa- 
tion of the objects of revenue that could have been fallen upon, 
would have amounted to a sacrifice of the great interests of the 
union to the power of the individual states. The convention 
thought the concurrent jurisdiction preferable to that subordina- 
tion ; and it is evident that it has at least the merit of reconciling 
an indefinite constitutional power of taxation in the federal gov- 
ernment, with an adequate and independent power in the states 
to provide for their own necessities. There remain a few other 
lights, in which this important subject of taxation will claim a 
further consideration. PUBLIUS. 



BY ALEXANDER HAMILTON. 
THE SAME SUBJECT CONTINUED. 

Before we proceed to examine any other objections to an in- 
definite power Qf taxation in the union, I shall make one general 
remark ; which is, that if the jurisdiction of the national govern- 
ment, in the article of revenue, should be restricted to particular 
objects, it would naturally occasion an undue proportion of the 
public Ijurthens to fall upon those objects. Two evils would spring 
from this source — the oppression of particular branches of indus- 



THE FEDERALIST. 151 

try, and an unequal distribution of the taxes, as well among the 
several states, as among the citizens of the same state. 

Suppose, as has been contended for, the federal power of taxa- 
tion were to be confined to duties on imports ; it is evident that 
the government, for want of being able ~to command other re- 
sources, would frequently be tenipted to extend these duties to an 
injurious excess. There are persons who imagine that this can 
never be the case ; since the higher they are, the more it is alleged 
they will tend to discourage an extravagant consumption, to pro- 
duce a favorable balance of trade, and to promote domestic manu- 
factures. But all extremes are pernicious in various ways. Ex- 
orbitant duties on imported articles serve to beget a general spirit 
of smuggling ; which is always prejudicial to the fair trader, and 
eventually to the revenue itself: they tend to render other classes 
of the community tributary, in an improper degree, to the manu* 
facturing classes, to whom they give a premature monopoly of the 
markets : they sometimes force industry out of its most natural 
channels into others in which it flows with less advantage : and in 
the last place, they oppress the merchant, who is often obliged to 
pay them himself without any retribution from the consumer. 
When the demand is equal to the quantity of goods at market, 
the consumer generally pays the duty ; but when the markets 
happen to be overstocked, the great proportion falls upon the 
merchant, and sometimes not only e.\haust his profits, but breaks 
in upon his capital. I am apt to think, that a division of the 
duty, between the seller and the buyer, more often happens than 
is commonly imagined. It is not always possible to raise the 
price of a commodity, in exact proportion to every additional im- 
position laid upon it. The merchant, especially in a country of 
small commercial capital, is often under a necessity of keeping 
prices down in order to a more expeditious sale. 

The maxim that the consumer is the payer, is so much oftener 
true than the reverse of the proposition, that it is far more equita- 
ble that the duties on imports should go into a common stock, than 
that they should redound to the exclusive benefit of the importing 
states. But it is not so generally true, as to render it equitable, 
that those duties should form the only national fund. When they 
are paid by the merchant, they operate as an additional tax upon 
the importing state ; whose citizens pay their proportion of them 
in the character of consumers. In this view, they are productive 
of inequality among the states ; which inequality would be increas- 
ed with the increased extent of the duties. The confinement of 
the national revenues to this species of imports would be attended 
with inequality, from a different cause, between the manufacturing. 
and the non-manufacturing states. The states which can go farth- 
est towards the sup})ly of their own wants, by their own manufac- 
tures, will not, according to their numbers or wealth, consume 



3 52 THE FEDERALIST. 

so great a proportion of imported articles as those states which are 
not ill the same favorable sitaation. They v/ould not, therefore, in 
this mode alone, contribute to the public treasury in a ratio to their 
abilities. To make them do this, it is necessary that recourse be 
had to excises ; the proper objects of which are particular kinds of 
manufactures. New York is more deeply interested in these con- 
siderations, than such of her citizens as contend for limiting the 
power of the union to external taxation, may be aware of. New 
York is an importing state, and from a greater disproportion be- 
tween her population and territory, is less likely, than some other 
states, speedily to become in any considerable degree a manufac- 
turing state. She would of course suffer in a double light, from 
restraining the jurisdiction of the union to commercial imposts. 

So far as these observations tend to inculcate a danger of the 
import duties being extended to an injurious extreme, it may be 
observed, conformably to a remark made in another part of these 
papers, that the interest of the revenue itself would be a sufficient 
guard against such an extreme. I readily admit that this would be 
the case, as long as other resources were open ; but if the avenues 
to them were closed, hope, stimulated by necessity, might beget 
expe'rimenis, fortified by rigorous precautions and additional pen- 
alties ; which, for a time, might have the intended effect, till there 
had been leisure to contrive expedients to elude these new precau- 
tions. The first success would be apt to inspire false opinions ; 
which it might require a long course of subsequent experience tp 
correct. Necessity, especially in politics, often occasions false 
hopes, false reasonings, and a system of measures correspondently 
erroneous. But even if this supposed excess should not be a 
consequence of the limitation of the federal power of taxation, 
the inequalities spoken of would still ensue, though not in the 
same degree, from the other causes that have been noticed. Let 
ns now return to the examination of objections. 

One which, if we may judge from the frequency of its repeti- 
tion, seems most to be relied on, is, that the house of representa- 
tives is not sufficiently numerous for the reception of all the differ- 
ent classes of citizens : in order to combine the interests and feel- 
ings of every part of the community, and to produce a due sympa- 
thy between the representative body and its constituents. This 
argument presents itself under a very specious and seducing form; 
and is well calculated to lay hold of the prejudices of those to 
whom it is addressed. But when we come to dissect it with atten- 
tion, it will appear to be made up of nothing but fair sounding 
words. The object it seems to aim at, is in the first place imprac- 
ticable, and in the sense in which it is contended for, is unnecessa- 
ry. I reserve for another place, the discussion of the question 
which relates to the sufficiency of the representative body in re- 
spect to numbers ; and shall content myself with examining here 



THE FEDERALIST. 153 

the particular use which has been made of a contrary supposition, 
in reference to the immediate subject of our inquiries. 

The idea of an actual representation of all classes of the peo- 
ple, by persons of each class, is altogether visionary. Unless it 
were expressly provided in the constitution, that each different oc- 
cupation should send one or more members, the thing would nev- 
er take place in practice. Mechanics and manufacturers will al- 
ways be inclined, with few exceptions, to give their voles to mer- 
chants, in preference to persons of their own professions or trades. 
Those discerning citizens are well aware, that the mechanic and 
manufacturing arts furnish the materials of mercantile enterprise 
and industry. Many of them, indeed, are immediately connected 
with the oj^erations of commerce. They know that the merchant 
is their natural patron and friend ; and they are aware, that how- 
ever great the confidence they may justly feel in their own good 
sense, their interests can be more effectually promoted by the 
merchant than by themselves. They are sensible that their habits 
of life have not been such as to give them those acquired endow- 
ments, without which, in a deliberative assembly, the greatest 
natural abilities are for the most part useless ; and that the influ- 
ence and weight, and superior acquirements of the merchants ren- 
der them more equal to a contest with any spirit which might hap- 
pen to infuse itself into the public councils, unfriendly to the man- 
ufacturing and trading interests. These considerations, and many 
others that might be mentioned, prove, and experience confirms 
it, that artizans and manufacturers will commonly be disposed to 
bestow their votes upon merchants and those whom they recom- 
mend. We must therefore consider merchants as the natural re- 
presentatives of all these classes of the community. 

With regard to the learned professions, little need be observed ; 
they truly form no distinct interest in society : and according to 
their situation and talents, will be indiscriminately the objects of 
the confidence and choice of each other, and of other parts of 
the community. 

Nothing remains but the landed interest : and this, in a politi- 
cal view, and particularly in relation to taxes, I take to be perfect- 
ly united, from the wealthiest landlord down to the poorest ten- 
ant. No tax can be laid on land which will not affect the propri- 
etor of thousands of acres, as well as the proprietor of a single 
acre. Every landholder will therefore have a common interest to 
keep the taxes on land as low as possible ; and common interest 
may always be reckoned upon as the surest bond of sympathy. 
But if we even could suppose a distinction of interest betv/een 
the opulent landholder, and the middling farmer, what reason is 
there to conclude, that the first would stand a better chance of 
being deputed to the national legislature than the last ? If we 
take fact as our guide, and look into our own senate and assem- 
20 



154 THE FEDERALIST. 

bly, we shall find that moderate proprietors of land prevail in 
both ; nor is this less the case in the senate, which consists of a 
smaller number, than in the assembly, which is composed of a 
greater number. Where the qualifications of the electors are the 
same, whether they have to choose a small or a large number, 
their vote will fall upon those in whom they have most confi- 
dence ; whether these happen to be men of large fortunes, or of 
moderate property, or of no property at all. 

It is said to be necessary, that all classes of citizens should have 
some of their own number in the representative body, in order 
that their feelings and interests may be the better understood and 
attended to. But we have seen that this will never happen under 
any arrangement that leaves the votes of the people free. Where 
this is the case, the representative body, with too few exceptions 
10 have any influence on the spirit of the government, will be 
composed of landholders, merchants, and men of the learned pro- 
fessions. But where is the danger that the interests and feelings 
of the different classes of citizens will not be understood or attend- 
ed to by these three descriptions of men? Will not the landhold- 
er know and feel whatever will promote or injure the interest of 
landed property ? And will he not, from his own interest in that 
species of property, be sufficiently prone to resist every attempt 
to prejudice or encumber it ? Will not the merchant understand 
and be disposed to cultivate, as far as may be proper, the interests 
of the mechanic and manufacturing arts, to which his commerce 
is so nearly allied ? Will not the man of the learned professioUj , 
who will feel a neutrality to the rivalships among the different 
branches of industry, be likely to prove an impartial arbiter be- 
tween them, ready to promote either, so far 'as it shall appear to 
him conducive to the general interest of the community ? 

If we take into the account the momentary humors or disposi- 
tions which may happen to prevail in particular parts of the soci- 
ety, and to which a wise administration will never be inattentive, 
is the man whose situation leads to extensive inquiry and inform- 
ation less likely to be a competent judge of their nature, extent, 
and foundation, than one whose observation does not travel be- 
yond the circle cf his neighbors and acquaintances ? Is it not 
natural, that a man, who is a candidate for the favor of the peo- 
ple and who is dependent on the suffrages of his fellow-citizens 
for the continuance of his public honors, should take care to in- 
form himself of their dispositions and inclinations, and should be 
willing to allow them the proper degree of influence upon his 
conduct ? This dependence, and the necessity of being bound 
himself, and his posterity, by the laws to which he gives his 
assent, are the true, and they are the strong chords of sympathy, 
between the representative and the constituent. 

There is no part of the administration of government that re- 



THE FEDERALIST. 155 

quires extensive information, and a thorough knowledge of the 
principles of political economy, so much as the business of taxa- 
tion. The man who understands those principles best, will be least 
likely to resort to oppressive expedients, or to sacrifice any partic- 
ular class of citizens to the procurement of revenue. It might be 
demonstrated that the most productive system of finance will al- 
ways be the least burdensome. There can be no doubt that in 
order to a judicious exercise of the power of taxation, it is neces- 
sary that the person in whose hands it is, should be acquainted 
with the general genius, habits and modes of thinking of the peo- 
ple at large, and with the resources of the country. And this is 
all that can be reasonably meant by a knowledge of the interests 
and feelings of the people. In any other sense, the proposition 
has either no meaning, or an absurd one. And in that sense, let 
every considerate citizen judge for himself, where the requisite 
qualification is most likely to be found. PUBLICS. 



BY ALEXANDER HAMILTON. 

THE SAME SUBJECT CONTINUED. 

We have seen that the result of the observations, to vvhich the 
foregoing number has been principally devoted, is, that from the 
natural operation of the different interests and views o£ the vari- 
ous classes of the community, whether the representation of the 
people be more or less numerous, it will consist almost entirely of 
proprietors of land, of merchants, and of members of the learned 
professions, who will truly represent all those different interests 
and views. If it should be objected, that we' have seen other de- 
scriptions of men in the local legislatures ; I answer, that it is ad- 
mitted there are exceptions to the rule, but not in sufficient num- 
ber to influence the general complexion or character of the govern- 
ment. There are strong minds in every walk of life, that will 
rise superior to the disadvantages of situation, and will command 
the tribute due to their merit, not only from the classes to which 
they particularly belong, but from the society in general. The door 
ought to be equally open to all ; and I trust, for the credit of hu- 
man nature, that we shall see examples of such vigorous plants 
flourishing in the soil of federal, as well as of state legislation ; 
but occasional instances of this sort will not render the reason- 
ing, founded upon the general course of things, less conclusive. 

The subject might be placed in several other lights, that would" 
all lead to the same result ; and in particular it might be asked. 



156 THE FEDERALIST. 

what greater afRtiity or relation of interest can be conceived, be- 
tween the carpenter and blacksmith, and the linen manufacturer 
or stocking weaver, than between the merchant and either of 
them ? It is notorious, that there are often as great rivalships be- 
tween different branches of the mechanic or manufacturing arts, 
as there are between any of the departments of labor and indus- 
try ; so that unless the representative body were to be far more 
numerous, than would be consistent with any idea of regularity 
or wisdom in its deliberation, it is impossible that what seems to 
be the spirit of the objection we have been considering, should 
ever be realized in practice. But I forbear to dwell longer on a 
matter, which has hitherto worn too loose a garb to admit even 
of an accurate inspection of its real shape or tendency. 

There is another objection of a somewhat more precise nature, 
which claims our attention. It has been asserted that a power of 
internal taxation in the national legislature, could never be exer- 
cised with advantage, as well from the want of a sufficient knowl- 
edge of local circumstances, as from an interference between the 
revenue laws of the union, and of the particular states. The sup- 
position of a want of proper knowledge, seems to be entirely des- 
titute of foundation. If any question is depending in a state leg- 
islature, respecting one of the counties, which demands a knowl- 
edge of local details, how is it acquired? No doubt from the in- 
formation of the members of the county. Cannot the like knowl- 
edge be obtained in the national legislature, from the representa- 
tives of each state ? And is it not to be presumed, that the men 
who will generally be sent there, will be possessed of the neces-' 
sary degree of intelligence, to be able to communicate that inform- 
ation ? Is the knowledge of local circumstances, as applied to 
taxation, a minute topographical acquaintance with all the moun- 
tains, rivers, streams, highways, and by-paths in each state ? Or 
is it a general acquaintance with its situation and resources — 
with the state of its agriculture, commerce, manufactures — with 
the nature of its products and consumptions — with the different 
degrees and kinds of its wealth, property and industry ? 

Nations in general, even under governments of the more pop- 
ular kind, usually commit the administration of their finances to 
single men, or to boards composed of a few individuals, who di- 
gest and prepare, in the first instance, the plans of taxation ; 
which are afterwards passed into law by the authority of the 
sovereign or legislature. Inquisitive and enlightened statesmen, 
are every where deemed best qualified to make a judicious selec- 
tion of the objects proper for revenue ; which is a clear indica- 
tion, as far as the sense of mankind can have weight in the ques- 
tion, of the species of knowledge of local circumstances, requi- 
site to the purposes of taxation. 

The taxes intended to be comprised under the general denomi- 



THE FEDERALIST. 157 

nation of internal taxes, may be subdivided into those of the direct 
and those of the indirect ^mdi. Though the objection be made to 
both, yet the reasoning upon it seems to be confined to the former 
branch. And indeed, as to the latter, by which must be under- 
stood duties and excises on articles of consumption, one is at a loss 
to conceive, what can be the nature of the difficulties apprehended. 
The knowledge relating to them must evidently be of a kind, that 
will either be suggested by the nature of the article itself, or can 
easily be procured from any well-informed man, especially, of the 
mercantile class. The circumstances that may distinguish its situ- 
ation in one state, from its situation in another, must be few, simple, 
and easy to be comprehended. The principal thing to be attend- 
ed to, would be to avoid those articles which had been previously 
appropriated to the use of a particular state ; and there could be 
no difficulty in ascertaining the revenue system of each. This 
could always be known from the respective codes of laws, as well 
as from the information of the members of the several states. 

The objection, when applied to real property or to houses and 
lands, appears to have, at first sight, more foundation ; but even in 
this view, it will not bear a close examination. Land taxes are 
commonly laid in one of two modes, either by actual valuations, 
permanent or periodical, or by occasional assessments at the dis- 
cretion, or according to the best judgment of certain officers whose 
duty it is to make them. In either case, the execution of the 
business, which alone requires the knowledge of local details must 
be confided to discreet persons in the character of commissioners 
or assessors, elected by the people, or appointed by the govern- 
ment for the purpose. All that the law can do, must be to name 
the persons or to prescribe the manner of their election or appoint- 
ment ; to fix their numbers and qualifications, and to draw the 
general outlines of their powers and duties. And what is there 
in all this that cannot as well be performed by the national legis- 
lature, as by the state legislature ? The attention of either can 
only reach to general principles : local details, as already observ- 
ed, must be referred to those who are to execute the plan. 

But there is a simple point of view, in which this matter may 
be placed, that must be altogether satisfactory. The national 
legislature can make use of the system of each state within that 
state. The method of laying and collecting this species of taxes 
in each state can, in all its parts, be adopted and employed by 
the federal government. 

Let it be recollected, that the proportion of these taxes is not to 
be left to the discretion of the national legislature : but it is to be 
determined by the numbers of each state, as described in the sec- 
ond section of the first article. An actual census, or enumeration 
of the people must furnish the rule ; a circumstance which effec- 
tually shuts the door to partiality or oppression. The abuse of 



158 THE FEDERALIST. 

this power of taxation seems to have been provided against with 
guarded circumspection. In addition to the precaution just men- 
tioned, there is a provision, that " all duties, imposts, and excises 
shall be uniform throughout the United States," 

It has been very properly observed, by different speakers and 
writers on the side of the constitution, that if the exercise of the 
power of internal taxation by the union should be judged before- 
hand upon mature consideration, or should be discovered on exper- 
iment, to be really inconvenient, the federal government may for- 
bear the use of it, and have recourse to requisitions in its stead. 
By way of answer to this, it has been triumphantly asked, why not 
in the first instance omit that ambiguous power, and rely upon the 
latter resource ? Two solid answers may be given ; the first is, 
that the actual exercise of the power, may be found both conven- 
ient and necessary ; for it is impossible to prove in theory, or oth- 
erwise than by the experiment, that it cannot be advantageously 
exercised. The contrary indeed, appears most probable. The 
second answer is, that the existence of such a power in the consti- 
tution will ha^e a strong influence in giving efficacy to requisitions. 
When the states know, that the union can supply itself without 
their agency, it will be a powerful motive for exertion on their part. 

As to the interference of the revenue laws of the union, and of 
its members, we have already seen, that there can be no clashing 
or repugnancy of authority. The laws cannot, therefore, in a legal 
sense, interfere with each other ; and it is far from impossible to 
avoid an interference even in the policy of their different systems. 
An effectual expedient for this purpose will be, mutually to abstain 
from those objects, which either side may have first had recourse 
to. As neither caw control the other, each will have an obvious 
and sensible interest in this reciprocal forbearance. And where 
there is an immediate common interest, we may safely count 
upon its operation. When the particular debts of the states are 
done away, and their expenses come to be limited within their 
natural compass, the possibility almost of interference will vanish. 
A small land tax will answer the purpose of the states, and will 
be their most simple and most fit resource. 

Many spectres have been raised out of this power of internal 
taxation, to excite the apprehensions of the people — double sets 
of revenue officers — a duplication of their burthens by double 
taxations, and the frightful forms of odious and oppressive poll- 
taxes, have been played off with all the ingenious dexterity of 
political legerdemain. 

As to the first point, there are two cases in which there can be 
no room for double sets of officers; one, where the right of im- 
posing the tax is exclusively vested in the union, which applies to 
the duties on imports : the other, where the object has not fallen 
under any state regulation or provision, which may be applicable 



THE FEDERALIST. 159 

to a variety of objects. In other cases, 'the probability is, that the 
United States will either wholly abstain from the objects preoc- 
cupied for local purposes, or will make use of the state officers and 
state regulations, for collecting the additional imposition. This 
will best answer the views of revenue, because it will save expense 
in the collection, and will best avoid any occasion of disgust to 
the state governments and to the people. At all events, here is a 
practicable expedient for avoiding such an inconvenience ; and 
Slothing more can be required than to show, that evils predicted 
do not necessarily result from the plan. 

As to any argmnent derived from a supposed system of influence 
it is a suffi.cient answer to say, that it ought not to be presumed ; 
but the supposition is susceptible of a more precise answer. If 
such a spirit should infest the councils of the union, the most cer- 
tain road to the accomplishment of its aim would be, to employ 
the state officers as much as possiblq, and to attach them to the 
union by an accumulation of their emoluments. This v/ould serve 
to turn the tide of state influence into the channels of the national 
government instead of making federal influence flow in an oppo- 
site and adverse current. But all suppositions of this kind are in- 
vidious, and ought to be banished from the consideration of the 
great question before the people. They can answer no other end 
than to cast a mist over the truth. 

As to the suggestion of double taxation, the answer is plain. 
The wants of the union are to he supplied in one way or another; 
if by the authority of the federal government, then it will not re- 
main to be done by that of the state governments. The quantity 
of taxes to be paid by the community, must be the same in either 
case ; with this advantage, if the provision is to be made by the 
union — that the capital resource of commercial imposts, which is 
the most convenient branch of revenue, can be prudently improv- 
ed to a much greater extent under federal than under state regula- 
tion, and of course will render it less necessary to recur to more 
inconvenient methods ; and with this further advantage, that as far 
as there may be any real difficulty in the exercise of the power of 
internal taxation, it will impose a disposition to greater care in the 
choice and arrangement of the means ; and must naturally tend to 
make it a fixed point of policy in the national administration to go 
as far as may be practicable in making the luxury of the rich tributa- 
ry to the public treasury, in order to diminish the necessity of those 
impositions which might create dissatisfaction in the poorer and 
most numerous classes of the society. Happy it is when the interest 
which the government has in the preservation of its own power, co- 
incides with a proper distribution of the public burthens, and tends 
to guard the least wealthy part of the community from oppression ! 
As to poll-taxes, I, without scruple, confess my disapprobation 
of them ; and though they have prevailed from an early period in 



160 THE FEDERALIST. 

those states,* which have uniformly been the most tenacious of 
their rights, I should lament to see them introduced into practice 
under the national government. But does it follow because there 
is a power to lay them, that they will actually be laid ; Every state 
in the union has power to impose taxes of this kind ; and yet in 
several of them they are unknown in practice. Are the state gov- 
ernments to be stigmatized as tyrannies, because they possess this 
power ? If they are not, with what propriety can the like power 
justify such a charge against the national government, or even be 
urged as an obstacle to its adoption ? As little friendly as I am to 
the species of imposition, I still feel a thorough conviction, that the 
power of having recourse to it ought to exist in the federal govern- 
ment. There are certain emergencies of nations, in which expe- 
dients, that in the ordinary state of things ought to be forborne, 
become essential to the public weal. And the government, from 
the possibility of such emergencies, ought ever to have the option 
of making use of them. The real scarcity of objects in this coun- 
try, which may be considered as productive sources of revenue, is 
a reason pecular to itself, for not abridging the discretion of the 
national councils in this respect. There may exist certain critical 
and tempestuous conjunctures of the state, in which a poll-tax may 
become an inestimable resource. And as I know nothing to ex- 
empt this portion of the globe from the common calamities that 
have befallen other parts of it, I acknowledge my aversion to 
every project that is calculated to disarm the government of a 
single weapon, which in any possible contingency might be 
usefully employed for the general defence and security. 

I have now gone through the examination of those powers, pro- 
posed to be conferred upon the federal government, which relate 
more peculiarly to its energy, and to its elRciency for answering 
the great and primary objects of union. There are others which, 
though omitted here, will, in order to render the view of the sub- 
ject more complete, be taken notice of under the next head of our 
inquiries, I flatter myself the progress already made, will have 
sufficed to satisfy the candid and judicious part of the community, 
that some of the objections which have been most strenuously 
urged against the constitution, and which were most formidable in 
their first appearance, are not only destitute of substance, but if 
they had operated in the formation of the plan, would have render- 
ed it incompetent to the great ends of public happiness and national 
prosperity. I equally flatter myself, that a further and more criti- 
cal investigation of the system will serve to recommend it still 
more to every sincere and disinterested advocate far good govern- 
ment ; and leave no doubt with men of this character, of the 
propriety and expediency of adopting' it. Happy will it be for 

* The New England States. 



THE FEDERALIST, 161 

w«rsElves, and most honorable for hunrian nature, if we have wis- 
dom and virtue enough, to set so glorious an example to mankind. 

PUBLIUS, 



BY JAMES MADISON, 

dONCERNmC THE DlFi'ICtTLTlES WHICH THE CONVENTION MUST 
HAVE EXPERIENCED IN THE FORMATION OF A PROPER PLAN. 

In reviewing the defects of the existing confederation, and 
showing that they cannot be supplied by a government of less 
energy than Chat before the public, several of the most important 
principles of the latter fell of course under consideration. But 
as the ultimate object of these papers is, to determine clearly and 
fully the merits of this constitution, and the expediency of 
adopting it, our plan cannot be completed without takir?g a more 
critical and thorough survey of the work of the convention 5 
without examining it on all its sides,- comparing it in all its parts 
and calculating its probable effects. 

That this remaining task may be executed under impressions 
conducive to a just and fair result, some reflections must in this 
place be indulged, which candor previously suggests. 

It is a misfortune, inseparable from human affairs, that public 
measures are rarely investigated with that spirit of moderation 
which is essential to a just estimate of their real tendency to ad'- 
vance, or obstruct the public good ; and that this spirit is more apt 
to be diminished than promoted, by those occasions which require 
an unusual exercise of it. To those who have been led by experi- 
ence to attend to this consideration, it could not appear surprising, 
that the act of tl:e convention which recommends so many impor- 
tant changes and innovations, which may be viewed in so many 
lights and relations, and which touches the springs of so many pas- 
sions and interests, should find or excite dispositions unfriendly, 
both on one side and on the other, to a fair discussion and accurate 
judgment of its merits. In some, it has been too evident from their 
own publications, that they have scanned the proposed constitution, 
not only with a predisposition to censure, but with a predetermina- 
tion to condemn ; as the-language held by others, betrays an op- 
posite predetermination or bias, which must render their opinions 
also of little moment in the question. In placing, however, these 
different characters on a level, with respect to the weight of their 
opinions, I wish not to insinuate that there may not be a material 
differejace in the purity of their intentions. It is but just to re- 

21 



162 THE FEDERALIST. 

mark in favor of the latter description, that as our situation is 
universally admitted to be peculiarly critical, and to require indis- 
pensably, that something sh,ould be done for oar relief, the prede- 
termined patron of what has been actually done, may have taken 
his bias from the weight of these considerations, as well as from 
considerations of a sinister nature. The predetermined adversary, 
on the other hand, can have been governed by no venial motive 
whatever. The intentions of the first may be upright, as they may 
on the contrary be culpable. The views of the last cannot be 
upright, and must be culpable. But the truth is, that these papers 
are not addressed to persons falling under either of these charac- 
ters. They solicit the attention of those only, who add to a sin- 
cere zeal for the happiness of their country, a temper favorable to 
a just estimate of the means of promoting it. 

Persons of this character will proceed to an examination of the 
plan submitted by the convention, not only without a disposition to 
find or to magnify faults ; but will see the propriety of reflectingj 
that a faultless plan was not to be expected. Nor will they barely 
make allowances for the errors which may be chargeable on the 
fallibility to which the convention, as a body of men, were liable ; 
but will keep in mind, that they themselves also are but men, and 
ought not to assume an infallibility in rejudging the fallible opin- 
ions of others. 

With equal readiness will it be perceived, that besides these in- 
ducements to candor, many allowances ought to be made, for the 
difiicultie's inherent in the very nature of the undertaking referred 
to the convention. 

The novelty of the undertaking immediately strikes us. It has 
been shown in the course of these papers, that the existing confed- 
eration is founded on principles which are fallaciotjs; that we must 
consequently change this foundation, and with it the superstructure 
resting upon it. It has been shown, that the other confederacies 
which could be consulted as precedents, have been vitiated by the 
same erroneous principles, and can therefore furnish no other light 
than that of beacons, which give warning of the course to be shun- 
ned, without pointing out that which ought to be pursued. The 
most that the convention could do in such a situation, was to avoid 
the errors suggested by the past experience of other countries, as 
well as of our own ; and to provide a convenient mode of rectify- 
ing their own errors as future experience may unfold them. 

Among the difficulties encountered by the convention, a very 
important one must have lain, in combining the requisite stability 
and energy in government, with the inviolable attention due to lib- 
erty, and to the republican form. Without substantially accom- 
plishing this part of their undertaking, they would have very im- 
perfectly fulfilled the object of their appointment, or the expect- 
ation of the public ; yet that it could not be easily accomplished, 



THE FEDERALIST. 163 

will be denied by no one who is unwilling to betray his ignorance 
of the subject. Energy in government is essential to that security . 
against external and internal dangers, and to that prompt and salu- 
tary execution of the laws, which enter into the very definition of 
good goverimient. Stability in government is essential to national 
character, and to the advantages annexed to it, as well as to .that 
repose and confidence in the minds of the people, which are among 
the chief blessings of civil society. An irregular and mutable leg- 
islation is not more an evil in itself, than it is odious to the people ; 
and it may be pronounced with assurance, that the people of this 
country enlightened as they are, with regard to the nature, and in- 
terested, as the great body of them are, in the effects of good gov- 
ernment, will never be satisfied, till some remedy be applied to the 
vicissitudes and uncertainties, which characterize the state adminis- 
trations. On comparing, however, these valuable ingredients with 
the vital principles of liberty, we must perceive at once the diffi- 
culty of mingling them together in their due proportions. The 
genius of republican liberty seems to demand on one side, not only > 
that all power should be derived from the people ; but that those ) 
entrusted with it should be kept in dependence on the people, by i 
a short duration of their appointments ; and that even during this 
short period, the trust should be placed not in a few, but in a num- 
ber of hands. Stability, on the contrary, requires, that the hands, 
in which power is lodged, should continue for a length of time the 
same. A frequent change of men will result from a frequent re- 
turn of elections ; and a frequent change of measures, from a fre- 
quent change of men : whilst energy of government requires not 
only a certain duration of power but the execution of it by a sin- 
gle hand. 

How far the convention may have succeeded in this part of their 
work, will better appear on a more accurate view of it. From the 
cursory view here taken, it must clearly appear to have been an ar- 
duous part. 

Not less arduous must have been the task of marking the proper > 
line of partition between the authority of the general, and that of i 
the state governments. Every man will be sensible of this diffi- ^ 
culty, in proportion as he has been accustomed to contemplate and 
discriminate objects, extensive and complicated in their nature. 
The faculties of the mjnd itself have never yet been distinguished 
and defined, with satisfactory precision, by all the efforts of the 
most acute and metaphysical philosophers. Sense, perception, 
judgment, desire, volition, memory, imagination, are found to be 
separated, by such delicate shades and minute gradations, that their 
boundaries have eluded the most subtle investigations, and remain 
a pregnant source of ingenious disquisition and controversy. The 
boundaries between the great kingdoms of nature, and, still more, 
between the various provinces, and lesser portions, into which they 



164 THE FEDERALIST. 

are subdivided, afford another illnstration of the same importaot 
*truth. The most sagacious and laborious naturalists have never 
yet succeeded, in tracing with certainty the line which separates 
the district of vegetable life, from the neighboring region of unor- 
ganized matter, or which marks the termination of the former, and 
the commencement of the animal empire. A siiW greater obscuri- 
ty lies in the distinctive characters, by which the objects in each of 
these great departments of nature have been arranged and assorted. 
When we pass from the works of nature, in which all the delin- 
eations aYe perfectly accurate, and appear to be otherwise only 
from the imperfections of the eye which surveys them, to the insti- 
tutions of man, in which the obscurity arises as well from the ob- 
ject itself, as from the organ by which it is contemplated ; we 
must perceive the necessity of moderating still further our expec- 
tations and hopes from the efforts of human sagacity. Experi- 
ence has instructed us, that no skill in the science of government 
has yet been able to discriminate and define, with sufficient cer- 
tainty, its three great provinces, the legislative, executive, and 
judiciary; or even the privileges and powers of the different leg- 
islative branches. (Questions daily occur in the course of prac- 
tice, which prove the obscurity which reigns in these subjects, 
and which puzzle the greatest adepts in political science. 

The experience of ages, with the continued and combined la- 
bors of the most enlightened legislators and jurists, have been 
equally unsuccessful in delineating the several objects and limits of 
different codes of laws, and different tribunals of justice. The 
precise extent of the common law, the statute law, the maritime 
law, the ecclesiastical law, the law of corporations, and other local 
laws and customs, remains still to be clearly and finally established 
in Great Britain, where accuracy in such subjects has been more 
industriously pursued than in any other part of the world. The 
jurisdiction of her several courts, general and local, of law, of 
equity, of admiralty, &c., is not less a source of frequent and in- 
tricate discussions, sufficiently denoting the indeterminate hmitsby 
which they are respectively circumscribed. All new laws, though 
penned with the greatest technical skill, and passed on the fullest 
and most mature deliberation, are considered as more or less ob- 
scure and equivocal, until their meaning be liquidated and ascer- 
tained by a series of particular discussions and adjudications. Be- 
sides the obscurity arising from the complexity of objects, and the 
imperfection of the human faculties, the medium through which 
the conceptions of men are conveyed to each other, adds a fresh 
"embarrassment. The use of words is to express ideas. Perspicui- 
* ty therefore requires, not only that the ideas should be distinctly 
formed, but that they should be expressed bywords distinctly and 
exclusively appropriated to them. But no language is so copious 
as to supply words and phrases for every complex idea, or so coc- 



THE FEDERALIST. 165 

rect as not to include many, equivocally denoting difFerant ideas. 
Hence it must happen, that however accurately objects may be 
discriminated in themselves, and however accurately the discrimi- 
nation may be conceived, the definition of them may be rendered 
inaccurate, by the inaccuracy of the tern^s in which it is delivered. 
And this unavoidable inaccuracy must be greater or less, according 
to the complexity and novelty of the objects defined. When the 
Almighty himself condescends to address mankind in their own 
language, his meaning, luminous as it must be, is rendered dim 
and doubtful, by the cloudy medium through which it is com- 
municated. 

Here, then, are three sources of vague and incorrect defini- 
tions ; indistinctness of the object, imperfection of the organ of 
perception, inadequateness of the vehicle of ideas. Any one of 
these must produce a certain degree of obscurity. The conven- 
tion in delineating the boundary between the federal and state 
jurisdictions, must have experienced the full effect of them all. 

To the difficulties already mentioned, may be added the inter- 
fering , pretensions of the larger and smaller states. We cannot 
err, in supposing that the former would contend for a participation 
in the government, fully proportioned to their superior wealth and 
importance ; and that the latter would not be less tenacious of the 
equality at present enjoyed by them. We may well suppose, that 
neither side would entirely yield to the other, and consequently 
that the struggle could be terminated only by compromise. It is 
extremely probable also, that after the ratio of representation had 
been adjusted, this very compromise must have produced a fresh 
struggle between the same parties, to give such a turn to the or- 
ganization of the government, and to the distribution of its pow- 
ers, as would increase the importance of the branches, in forming 
which they had respectively obtained the greatest share of influ- 
ence. There are features in the constitution which warrant each 
of these suppositions ; and as far as either of them is well found- 
ed, it shows that the convention must have been compelled to 
sacrifice theoretical propriety, to the force of extraneous consider- 
ations. 

Nor could it have been the large and small states only, which 
would marshal themselves in opposition to each other on various 
points. Other combinations, resulting from a difference of local 
position and policy, must have created additional difficulties. As 
every state may be divided into different districts, and its citizens 
into different classes, which give birth to contending interests and 
local jealousies; so that different parts of the United States are 
distinguished from each other, by a variety of circumstances, 
which produce a like effect on a larger scale. And although this 
variety of interests, for reasons sufficiently explained in a former 



166 THE FEDERALIST. 

paper, may have a salutary influence on the administration of the 
government when formed ; yet every one must be sensible of the 
contrary influence, which must have been experienced in the task 
of forming it. 

Would it be wonderful, if under the pressure of all these diffi- 
culties, the convention should have been forced into some devia- 
tions from that artificial structure and regular symmetry, which 
an abstract view of the subject might lead an ingenious theorist 
to bestow on a constitution planned in his closet, or in his imag- 
ination ? The real wonder is, that so many difficulties should 
have been surmounted ; and surmounted, with an unanimity al- 
most as unprecedented, as it must have been unexpected. It is 
impossible for any man of candor to reflect on this circumstance, 
without partaking of the astonishment. It is impossible for the 
man of pious reflection, not to perceive in it a finger of that Al- 
mighty Hand, which has been so frequently and signally extend- 
ed to our relief in tlie critical stages of the revolution. 

We had occasion, in a former paper, to take notice of the re- 
peated trials which have been unsuccessfully made in the United 
Netherlands, for reforming the baneful and notorious vices of their ' 
constitution. The history of almost all the great councils and 
consultations held among mankind for reconciling their discord- 
ant opinions, assuaging their mutual jealousies, and adjusting 
their respective interests, is a history of factions, contentions, and 
disappointments ; and may be classed among the most dark and 
degraded pictures, which display the infirmities and depravities of 
the human character. If, in a few scattered instances, a brighter 
aspect is presented, they serve only as exceptions to admonish us 
of the general truth ; and by their lustre to darken the gloom of 
the adverse prospect, to which they are contrasted. In revolving 
the causes from which these exceptions result, and applying them 
to the particular instance before us, we are necessarily led to two 
important conclusions. The first is, that the convention must 
have enjoyed, in a very singular degree, an exemption from the 
pestilential iilfl^uence of party animosities ; the diseases most inci- 
dent to deliberative bodies, and most apt to contaminate their pro- 
ceedings. The second conclusion is, that all the deputations com- 
posing The convention were either satisfactorily accommodated by 
the final act ; or were induced to accede to it. by a deep convic- 
tion of the necessity of sacrificing private opinions and partial 
interests to the public good ; and by a despair of seeing this 
necessity diminished by delays, or by new experiments. ' 

PUBLIUS. 



THE FEDERALIST. U7 

BY JAMES MADISON. 

THE SUBJECT CONTINUED, AND THE INCOHERENCE; OF THE OBJEC- 
TIONS TO THE PLAN EXPOSED. 

It is not a little remarkable, that in every case reported by an- 
cient history, in which government has been established with de- 
liberation and consent, the task of framing it has not been com- 
mitted to an assembly of men ; but has been performed by some 
individual citizen, of preeminent wisdom and approved integrity. 

Minos, we learn, was the primitive founder of the government 
of Crete ; as Zeleucus was that of the Locrians. Theseus first, 
and after him Draco and Solon, instituted the government of 
Athens. Lycurgus was the lawgiver of .Sparta. The foundation 
of the original government of Rome was laid by Romulus ; and the 
work completed by two of his elective successors, Numa, and Tul- 
lius Hostilius. On the abolition of royalty, the consular administra- 
tion was substituted by Brutus, who stepped forward with a project 
for such a reform, which, he alleged, had been prepared by Servius 
TuUius, and to which his address obtained the assent and ratifica- 
tion of the senate and people. This remark is applicable to con- 
federate governments also. Araphyction, we are told, was the 
author of that which bore his name. The Achasan league re- 
ceived its first birth from Achseus, and its second from Aratus. 

What degree of agency these reputed lawgivers might have* in 
their respective establishments, or how far they might be clothed 
with the legitimate authority of the people, cannot, in every in- 
stance, be ascertained, In some, however, the proceeding was 
strictly regular. Draco appears to have been entrusted by the peo- 
ple of Athens, with indefinite powers to reform its government and 
laws. And Solon, according to Plutarch, was in a manner com- 
pelled, by the universal suffrage of his fellow-citizens, to take 
upon him the sole and absolute power of new-modeling the con- 
stitution. The proceedings under Lycurgus were less regular; 
but as far as the advocates for a regular reform could prevail, they 
all turned their eyes towards the single efforts of that celebrated 
patriot and sage, instead of seeking to bring about a revolution, 
by the intervention of a deliberative body of citizens. 

Whence could it have proceeded, that a people, jealous as the 
Greeks were of their liberty, should so far abandon the rules of 
caution as to place their destiny in the hands of a single citizen ? 
Whence could it have proceeded, that the Athenians, a people who 
would not suffer an army to be commanded by fewer than ten gen- 
erals, and who required no other proof of daijger to their liberties 
than the illustrious merit of a fellow-citizen, should consider one 



168 THE FEDERALIST. 

illustrious citizeri as a more eligible depositary of the fortunes of 
themselves and their posterity, than a select body of citizens, from 
whose common deliberations more wisdom, as well as more safe- 
ly, might have been expected ? These questions cannot be fully 
answered, without suppoeing that the fears of discord and disunion 
among a numb^ of counselors, exceeded the apprehension of 
treachery or incapacity in a single individual. History informs usj 
likewise, of the difficulties with which these celebrated reformers 
had to contend ; as well as of the expedients which they were 
obliged to employ, in order to carry their reforms into effect. So- 
lon, who seems to have indulged a more temporizing policy, con" 
fessed that he had not given to his countrymen the government 
best suited to their happiness but most tolerable to their prejudices. 
And Lycurgus, more true to his object, was under the necessity 
of mixing a portion of violence with the authorit}'' of superstition , 
and of securing his jfinal. success, by a voluntary renunciation, 
first of his country, and then of his life. 

If these lessons teach us, on one hand, to admire" the improve- 
ment made by America on the ancient mode of preparing and 
establishing regular plans of government ; they serve not less on 
the other, to admonish us of the hazards and difficulties incident 
to such experiments, and of the great imprudence of unnecessa- 
rily multiplying them. 

Is it an unreasonable conjecture, that the errors which may be 
contained in the plan of the convention, are such as have resulted 
rather from the defect of antecedent experience on this compli- 
^cated and difficult subject, than from a want of accuracy or care 
in the investigation of it; and, consequently, such as will not be 
ascertained until an actual trial shall have pointed them out? 
This conjecture is rendered probable, not only by many consid- 
erations of a general nature, but by the particular case of the 
articles of confederation. 

It is observable that among the numerous objections and amend- 
ments suggested by the several states, when these articles were 
submitted for their ratification, not one is found, which alludes to 
the great and radical error, which on actual trial has discovered 
itself. And if we except the observations which New Jersey 
was led to make, rather by her local situation, than by her pecu- 
liar foresight, it may be questioned whether a single suggestion 
was of sufficient moment to justify a revision of the system. 
There is abundant reason, nevertheless, to suppose that immaterial 
as the objections were, they would have been adhered to with a 
very dangerous inflexibility, in some states, had not a zeal for their 
opinions and supposed interest been stifled by the more powerful 
sentiment of self-preservation. One state, we nlay remember, per- 
sisted for several years in refusing her concurrence, although the 
enemy remained the whole period at our gates, or rather in the 



THE FEDERALIST. 169 

very bowels of our country. Nor was her pliancy in the end ef- 
fected by a less motive, than the fear of being chargeable with 
protracting the public calamities, and endangering the event of 
the contest. Every candid reader will make the proper reflections 
on these important facts. 

A patient, who finds his disorder daily growing worse, and that 
an efficacious remedy can no longer be delayed without extreme 
danger; after coolly revolving his situation, and the characters of 
different physicians, selects and calls in such of them as he judges 
most capable of administering relief, and best entitled to his confi- 
dence. The physicians attend : the case of the patient is carefully 
examined — a consultation is held : they are unanimously agreed, 
that the symptoms are critical ; but that the case, with proper and 
timely relief, is so far from being desperate, that it may be made 
to issue in an improvement of his constitution. They are equally 
unanimous in prescribing the remedy, by which this happy effect is 
to be produced. The prescription is no sooner made known, how- 
ever, than a number of persons interpose, and, without denying 
the reality or danger of the disorder, assure the patient that the 
prescription will be poison to his constitution, and forbid him, un- 
der pain of certain death, to make use of it. Might not the pa- 
tient reasonably demand, before he ventured to follow this advice, 
that the authors of it should at least agree among themselves on 
some other remedy to be substituted ? And if he found them dif- 
fering as much from one another, as from his first counselors, 
would he not act prudently in trying the experiment unanimously 
recommended by the latter, rather than in barkening to those who 
could neither deny the necessity of a speedy remedy, nor agree in 
proposing one ? 

Such a patient, and in such a situation, is America at this mo- 
ment. She has been sensible of her malady. She has obtained a 
regular and unanimous advice from men of her own deliberate 
choice. And she is warned by others against following this advice 
under pain of the most fatal consequences. Do the monitors deny 
the reality of her danger ? No. Do they deny the necessity of 
some speedy and powerful remedy ? No. Are they agreed, are 
any two of them agreed, in their objections to the remedy pro- 
posed, or in the proper one to be substituted ? Let them speak 
for themselves. 

This one tells us, that the proposed constitution ought to be re- 
jected, because it is not a confederation of the states, but a govern- 
ment over individuals. Another admits, that it ought to be a gov- 
ernment over individuals, to a certain extent, but by uo means to 
the extent proposed. A third does not object to the government 
over individuals, or to the extent proposed, but to the want of a bill 
of rights. A fourth concurs in the absolute necessity of a bill of 
rights, but contends, that it ought to be declaratory not of the per- 
23 



170 THE FEDERALIST. 

sonal rights of individuals, but of the rights reserved to the states 
in their political capacity. A fifth is of opinion, that a bill of 
rights of any sort would be superfluous and misplaced, and that 
; the plan would be unexceptionable, but for the fatal power of reg- 
' ulating the times and places of election. An objector in a large 
State exclaims loudly against the unreasonable equality of represent- 
ation in the senate. An objector in a small state is equally loud 
against the dangerous inequality in the house of representatives. 
From this quarter, we are alarmed with the amazing expense, from 
the number of persons who are to administer the new government. 
From another quarter, and sometimes from the same quarter, on 
another occasion, the cry is, that the congress will be but a shadow 
of a representation, and that the government would be far less ob- 
jectionable, if the number and the espensfe were doubled. A pat- 
riot in a state that does not import or export, discerns insupera- 
ble objections against the power of direct taxation. The patriotic 
adversary in a state of great exports and imports is not less dissat- 
' isfied that the whole burthen of taxes may be thrown on consump- 
tion. This politician discovers in the constitution a direct and ir- 
resistible tendency to monarchy: that is equally sure, it will end in 
aristocracy. Another is puzzled to* say which of these shapes it 
will ultimately assume, but sees clearly it must be one or other of 
them ; whilst a fourth is not wanting, who with no less confidence 
affirms, that the constitution is so far from having a bias towards 
either of these dangers, that the weight on that side will not be 
sufficient to keep it upright and firm against its opposite propensi- 
ties. With another class of adversaries to the constitution, the 
language is, that the legislative, executive, and judiciary depart- 
ments, are intermixed in such a manner, as to contradict all the 
ideas of regular government, and all the requisite precautions in 
favor of liberty. Whilst this objection circulates in vague and 
general expressions, there are not a few who lend their sanction to 
it. Let each one come forward with his particular explanation, 
and scarcely any two are exactly agreed on the subject. In the 
eyes of one, the junction of the senate with the president in the 
responsible function of appointing to offices, instead of vesting this 
executive power in the executive alone, is the vicious part of the 
organization. To another, the exclusion of the house of represent- 
atives, whose numbers alone could be a due security against cor- 
ruption and partiality in the exercise of such a power, is equally 
obnoxious. With another, the admission of the president into any 
share of a power, which must ever be a dangerous engine in the 
hands of the execiitive magistrate, is an unpardonable violation of 
the maxims of republican jealousy. No part of the arrangement, 
according to some, is more inadmissible than the trial of impeach- 
ments by the senate, which is alternately a member both of the 
legislative and executive departments; when this power so evident- 



THE FEDERALIST. 171 

ly belonged to the judiciary department. We concur fully, reply 
others, in the objection to this part of the plan, but we can never 
agree that a reference of impeachments to the judiciary authority 
would be an amendment of the error; our principal dislike to the 
organization arises from the extensive powers already lodged in 
that department. Even among the zealous patrons of a council 
of state the most ifreconcilable variance is discovered, concerning 
the mode in which it ought to be constituted. The demand of 
one gentleman is, that the council should consist of a small num- 
ber, to be appointed by the most numerous bran<!h of the legisla- 
ture. Another would prefer a larger number, and considers it as 
a fundamental condition, that the appointment should be made 
by the president himself. 

As it can give no umbrage to the writers against the plan of 
the federal constitution, let us suppose, that as they are the most 
zealous, so they are also the most sagacious, of those who think 
the late convention were unequal to the task assigned them, and 
that a wiser and better plan might and ought to be substituted. 
Let us further suppose, that their country should concur, both in 
this favorable opinion of their merits, and in their unfavorable 
opinion of the convention; and should accordingly proceed to ' 
form them into a second convention, with full powers, and for the 
express purpose of revising and remoulding the work of the first. 
Were the experiment to be seriously made, tliough it requires 
some effort to view it seriously even in fiction, I leave it to be 
decided by the sample of opinions just exhibited, whether, with 
all their enmity to their predecessors, they would, in any one 
point, depart so widely from their example, as in the discord and 
ferment that would mark their own deliberations ; and whether 
the constitution, now before the public, would not stand as fair 
a chance for immortality, as Lycurgus gave to that of Sparta, by 
making its change to depend on his own return from exile and 
death, if it were to be immediately adopted, and were to con- 
tinue in force, not until a better, but until another should be 
agreed upon by this new assembly of lawgivers. 

It is a matter, both of wonder and regret, that those who raise 
so many objections against the new constitution, should never call 
to mind the defects of that which is to be exchanged for it. It is 
not necessary that the former should be perfect: it is sufficient 
that the latter is more imperfect. No man would refuse to give 
brass for silver or gold, because the latter had some alloy in it. 
No man would refuse to quit a shattered and tottering habitation, 
for a firm and commodious building, because the latter had not a 
porch to it ; or because some of the rooms might be a little larger 
or smaller, or the ceiling a little higher or lower then his fancy 
would have planned them. But waving illustrations of this sort, 
is it not manifest that most of the capital objections urged against 



172 THE FEDERALIST. 

the new system, lie with tenfold weight against the existing con- 
federation ? Is an indefinite power to raise money dangerous in 
the hands of the federal government ? The present congress can 
make requisitions to any amount they please ; and the states are 
constitutionally bound to furnish them. They can emit bills of 
credit as long as they will pay for the paper ; they can borrow 
both abroad and at home, as long as a shilling will be lent. Is 
an indefinite power to raise troops dangerous ? The confedera- 
tion gives to congress that power also ; and they have already 
begun to make use of it. Is it improper and unsafe to intermix 
the different powers of government in the same body of men ? 
Congress, a single body of men, are the sole depositary of all the 
federal powers. Is it particularly dangerous to give the keys of 
the treasury, and the command of the army, into the same hands? 
The confederation places them both in the hands of congress. 
Is a bill of rights essential to liberty ? The confederation has no 
bill of rights. Is it an objection against the new constitution, 
that it empowers the senate, with the concurrence of the execu- 
tive, to make treaties which are to be the laws of the land ? The 
existing congress, without any such control, can make treaties 
which they themselves have declared, and most of the states have 
recognized, to be the supreme law of the land. Is the importa- 
tion of slaves permitted by the new constitution for twenty years? 
By the old it is permitted forever. 

I shall be told, that however dangerous this mixture of powers 
may be in theory, it is rendered harmless by the dependence of 
congress on the states for the means of carrying them into practice ; 
that however large the mass of powers may be, it is in fact a life- 
less mass. Then, say I, in the first place, that the confederation 
is chargeable with the still greater folly, of declaring certain powers 
in j;he federal government to be absolutely necessary, and at the 
same time rendering them absolutely nugatory : and, in the next 
place, that if the union is to continue, and no better government 
be substituted, effective powers must either be granted to, or as- 
sumed by, the existing congress ; in either of which events, the 
contrast just stated will hold good. But this is not all. Out of this 
lifeless mass, has already grown an excrescent power, which tends 
to realize all the dangers that can be apprehended from a defective 
construction of the supreme government of the union. It is now 
no longer a point of speculation and hope, that the western territo- 
ry is a mine of vast wealth to the United States ; and although it 
is not of such a nature as to extricate them from their present 
distresses, or for some time to come to yield any regular supplies 
for the public expenses ; yet must it hereafter be able, under pro- 
per management, both to effect a gradual discharge of the domes- 
tic debt, and to furnish for a certain period, liberal tributes to the 
federal treasury. A very large proportion of this fund has been 



THE FEDERALIST. 173 

• 

already surrendered by individual states ; and it may with reason 
be expected, that the remaining states will not persist in with- 
holding similar proofs of their equity and generosity. We may 
calculate, therefore, that a rich and fertile country, of an area equal 
to the inhabited extent of the United States will soon become a 
national stock. Congress have assumed the administration of 
this stock. They have begun to render it productive. Congress 
have undertaken to do more : — they have proceeded to form 
new states ; to erect temporary governments ; to appoint officers 
for them ; and to prescribe the conditions on which such states 
shall be admitted into the confederacy. All this has been done : 
and done without the least color of constitutional authority. Yet 
no blame has been whispered ; no alarm has been sounded. A 
' GREAT and iNDEPENDENTv fuud of rcveuue is passing into the hands 
of a SINGLE BODY of mcu, who can raise troops to an indefinite 
NUMBER, and appropriate money to their support for an indefinite 
PERIOD OF time. And yet there are men, who have not only 
been silent spectators of this prospect, but who are advocates for 
the system which exhibits it ; and, at the same time, urge against 
the new system the objections which we have heard. Would 
they not act with more consistency, in urging the establishment 
of the latter, as no less necessary to guard the union against the 
future powers and resources of a body constructed like the exist- 
ing congress, than to save it from the dangers threatened by the 
present impotency of that assembly ? 

I mean not, by any thing here said, to throw censure on the 
measures which have been pursued by congress. I am sensible 
they could not have done otherwise. The public interest, the 
necessity of the case, imposed upon them the task of overleap- 
ing their constitutional limits. ' But is not the fact an alarming 
proof of the danger resulting from a government, which does not 
possess regular powers commensurate to its objects ? A dissolu- 
tion, or usurpation is the dreadful dilemma to which it is con- 
tinually exposed. PUBLIUS. 



174 THE FEDERALIST. 

isrxjiivcBDp]!^ :k::k::k.x:k:, 

BY JAMES MADISON. 

THE CONFORMITY OP THE PLAN TO EEPUBLICAN PRINCIPLES: AN 
OBJECTION IN RESPECT TO THE POWERS OF THE CONVENTION 
EXAMINED, 

The last paper having concluded the observations, which were 
meant to introduce a candid survey of the plan of government re- 
ported by the convention, we now proceed to the execution of 
that part of our undertaking. 

The first question that offers itself is, whether the general form 
and aspect of the government be strictly republican ? It is evi- 
dent thiat no other form would be reconciiable with the genius of 
the people of America ; with the fundamental principles of the 
revolution ; or with that honorable determination which animates 
every votary of freedom, to rest all our political experiments on 
the capacity of mankind for self-government. If the plan of the 
convention, therefore, be found to depart from the republican 
character, its advocates must abandon it as no longer defensible. 

What then are the distinctive characters of the republican form? 
Were an answer to this question to be sought, not by recurring to 
principles, but in the application of the term by political writers, to 
the constitutions of different states, no satisfactory one would ever 
be found. Holland, in which no particle of the supreme authority 
is derived from the people, has passed almost universally under the 
denomination of a republic. The same title has been bestowed on 
Venice, where absolute power over the great body of the people is 
exercised, in the most absolute manner, by a small body of heredi- 
tary nobles. Poland, which is a mixture of aristocracy and of 
monarchy in their worst forms, has been dignified with the same 
appellation. The government of England, which has one republi- 
can branch only, combined with an hereditary aristocracy and mon- 
archy, has, with equal impropriety, been frequently placed on the 
list of republics. These examples, which are nearly as dissimilar 
to each other as to a gemiine republic, show the extreme inaccu- 
racy with which the term has been used in political disquisitions, 

If we resort, for a criterion, to the different principles on which 
different forms of government are established,, we may define a re- 
public to be, or at least may bestow,that name on, a government 
which derives all its power directly or indirectly from the great 
body of the people, and is administered by persons holding their 
offices during pleasure, for a limited period, or during good beha- 
vior. It is essential to such a government, that it be derived from 
the great body of the society, not from an inconsiderable propor- 
tion, or a favored class of it ; otherwise a handful of tyrannical 
nobles, exercising their oppressions by a delegation of their powers, 



THE federalist; 175 

might aspire to the rank of repubhcans, and claim for their gov- 
ernment the honorable title of republic. It is sufficient for such 
a government, that the persons administering it be appointed, 
either directly or indirectly, by the people ; and that they hold their 
appointments by either of the tenures just specified ; otherwise every 
govenmient in the United States, as well as every other popular 
government that has been or can be well organized or well execut- 
ed, would be degraded from the republican character. According 
to the constitution of every state in the union, some or other of 
the officers of government are appointed indirectly only by the 
people. According to most of them, the chief magistrate himself 
is so appointed. And according to one, this mode of appointment 
is extended to one of the coordinate branches of the legislature. 
According to all the constitutions also, the tenure of the highest 
offices is extended to a definite period, ancf in many instances, both 
within the legislative and executive departments, to a period of 
years. According to the provisions of most of the constitutions, 
t again, as well as according to the most respectable and received 
opinions on the subject, the members of the judiciary department 
are to retain their offices by the firm tenure of good behavior. 

On comparing the constitution planned by the convention, with 
the standard here fixed, we perceive at once, that it is, in the rnost 
rigid sense, conformable to it. The house of representatives, like 
that of ©ne branch at least of all the state legislatures, is elected 
im.mediately by the great body of the people. The senate, like 
the present congress, and the senate of Maryland, derives its ap- 
pointment indirectly from the people. The president is indirectly 
derived from the choice of the people, according to the example 
in most of the states. Even the judges, with all other officers of 
the union, will, as in the several states, be the choice, though a re- 
mote choice, of the people themselves. The duration of the ap- 
pointments is equally conformable to the republican standard, and 
to the model of the state constitutions. The house of representa- 
tives is periodically elective, as in all the states ; and for the period 
of two years, as in the state of South Carolina. The senate is 
elective, for the period of six years ; which is but one year more 
than the period of the senate of Maryland ; and but two more 
than that of the senates of New York and Virginia. The presi- 
dent is to continue in office for the period of four years ; as in 
New York and Delaware, the chief magistrate is elected for three 
years, and in South Carolina for two years. In the other states 
the election is annual. In several of the states, however, no ex- 
plicit provision is made for the impeachment of the chief magis- 
trate. And in Delaware and Virginia, he is not impeachable till 
out of office. The president of the United States is impeachable 
at any time during his continuance in office. The tenure by which 
the judges are to hold their places, is, as it unquestionably ought 



' 176 THE FEDERALIST. 

to be, that of good behavior. The tenure of the ministerial offi- 
ces generally, will be a subject of legal regulation, conformably 
to the reason of the case, and the example of the state constitu- 
tions. 

Could any further proof be required of the republican com- 
plexion of this system, the most decisive one might be found in 
its absolute prohibition of titles of nobility, both under the fed- 
,eral and the state governments; and in its express guaranty of 
the republican form to each of the latter. 

But it was not sufficient, say the adversaries of the proposed 
constitution, for the convention to adhere to the republican form. 
They ought, with equal care to have preserved ihe federal form, 
which regards the union as a confederacy of sovereign states ; in- 
stead of which, they have framed a naiiojial government, which 
regards the union as a consolidation of the states. And it is 
asked by what authority this bold and radical innovation was 
undertaken ? The handle which has been made of this objection 
requires, that it should be examined with some precision. 

Without inquiring into the accuracy of the distinction on 
which the objection is founded, it will be necessary to a just 
estimate of its force, first, to ascertain the real character of the 
government in question ; secondly, to inquire how far the con- 
vention were authorized to propose such a government ; and 
thirdly, how far the duty they owed to their country, could sup- 
ply any defect of regular authority. 

First. In order to ascertain the real character of the govern- 
ment, it may be considered in relation to the foundation on which 
it is to be established ; to the sources from which its ordinary 
powers are to be drawn ; to the operation of those powers ; to 
the extent of them ; and to the authority by which future 
changes in the government are to be introduced. 

On examining the first relation, it appears, on one hand, t^hat the 
constitution is to be founded on the assent and ratification of the 
people of America, given by deputies elected for the special pur- 
pose ; but on the other, that this assent and ratification is to be 
given by the people, not as individuals composing one entire nation, 
but as composing the distinct and independent states to which they 
respectively belong. It is to be the assent and ratification of the 
several states, derived from the supreme authority in each state — 
the authority of the people themselves. The act, therefore, estab- 
lishing the constitution, will not be a national, but a federal act. 

That it will be a federal, and not a national act, as these terms 
are understood by the objectors, the act of the people, as forming 
so many independ-ent states, not as forming one aggregate nation, 
is obvious from this single consideration, that it is to "result neither 
from the decision of a majority of the people of the union, nor 
from that of a majority of the states. It must result from the 



THE FEDERALIST. 177 

nnanimom assent of the several states that are parties to it, differ- 
ing no otherwise from their ordinafy assent than in its being ex- 
pressed, not by the legislative authority, but by that of the people 
themselves. „,'Were the people regarded in this transaction as form- 
ing one nation, the will of the majority of the whole people of the 
United States would bind the minority; in the sanie manner as the 
majority in each state must bind the minority ; and the will of the 
majority must be determined either by a comparison of the individ- 
ual votes, or by considering the will of the majority of the states, 
as evidence-of the will of a majority of the people of the United 
States. Neither of these rales has been adopted. Each state, in 
ratifying the constitution, is considered as a sovereign body, inde- 
pendent of all others, and only to be bound by its own voluntary 
act. In this relation, then, the new constitution will, if estab- 
lished, be a federal, and not a nationtil constitution. 

The next relation is, to the sources from which the ordinary pow- 
ers of govenmient are to be derived. The house of representa- 
tives will derive its powers from the people of America, and the 
people will be represented in the same proportion, and on the same 
principle, as they are in the legislature of a particular state. So 
far the government is national not federal. The senate, on the 
other hand, will derive its powers from the states, as political and 
coequal societies ,• and these will be represented on the principle of 
equality in the senate, as they nov/ are in the existing congress. 
tSo far the government is federal, not national. The executive 
power will be derived from a very compound source. The imme- 
diate election of the president is to be made by the states in their 
political characters. The votes allotted to them are in a compound 
ratio, which considers them partly as distinct and coequal societies ; 
partly as unequal members of the same society. The eventual 
election, again, is to be made by that branch of the legislature 
which consists of the national representatives,- but in this partic- 
ular act, they are to be thrown into the form of individual delega- 
tions, from so many distinct and coequal bodies politic. From 
this aspect of the government, it appears to be of a mixed char- 
acter, presenting at least as many federal as national features. 

The difference between a federal and national government, as it 
relates to the operation of the government, is, by the adversaries 
of the plan of the convention, supposed to consist in this, that in 
the former, the powers operate on the political bodies composing 
the confederacy, in their political capacities ; in the latter, on the 
individual citizens composing the nation, in their individual capaci- 
ties. On trying the constitution by this criterion, it falls under the 
national, not the federal character ; though perhaps not so com- 
pletely as has been understood. In several cases, and particularly 
in the trial of controversies to which states may be parties, they 
must be viewed and proceeded against in their collective and politi- 
23 



178 THE FEDERALIST. 

cal capacities only. But the operation of the government on the 
people in their individual capacities, in its ordinary and most es- 
sential proceedings, will, on the whole, in the sense of its oppo- 
nents, designate it, in this relation, a national government. 

But if the government be national, with regard to the operation 
of its powers, it changes its aspect again when we contemplate it 
in relation to the extent of its powers. The idea of a national 
government involves in it, not only an authority over the individual 
citizens, but an indefinite supremacy over all persons and things, so 
far as they are objects of lawful government. Among a people con- 
solidated into one nation, this supremacy is completely vested in the 
national legislature. Among communities united for particular pur- 
poses, it is vested partly in the general, and partly in the municipal 
legislatures. In the former case, all local authorities are subordi- 
nate to the supreme ; and may be controlled, directed, of abolished 
by it at pleasui'e- In the latter, the local or municipal authorities 
form distinct and independent portions of the supremacy, no more 
subject, within their respective spheres, to the general authority, 
than the general authority is subject to them within its own sphere. 
In this relation, then, the proposed government cannot he deemed 
a national one ; since its jurisdiction extends to certain enumerated 
objects only, and leaves to the several states a residuary and invio- 
lable sovereignty over all other objects. It is true, that in contro- 
versies relating to the boundary between the two jurisdictions, the 
tribunal which is ultimately to decide, is to be established under, the 
general government. But this does not change the principle of the 
case. The decision is to l^e impartially made, according to the 
rules of the constitution ; and all the usual and most effectual pre- 
cautions are taken to secure this impartiality. Some such tri- 
bunal is clearly essential to prevent an appeal to the sword, and a 
dissolution of the compact ; and that it ought to be established un- 
der the general, rather than under the local governments; or, to 
speak more properly, that it could be safely established" under the 
first alone, is a position not likely to be combatted. 

If we try the constitution by its last relation, to the authority by 
which amendments are to be made, v/e find it neither wholly na- 
tional, nor wholly federal. Were it wholly national, the supreme 
and ultimate authority would reside in the majority of the people 
of the union ] and this authority would be competent at all times^ 
like that of a majority of every national society, to alter or abolish 
its established government. Were it wholly federal on the other 
hand, the concurrence of each state in the union would be essen- 
tial to every alteration that would be binding on all. The mode 
provided by the plan of the convention, is not founded on either of 
these principles. In requiring more than a majority, and particu- 
larly, in computing the proportion by states, not by citizens, it de- 
parts from the national, and advances towards the federal charac- 



THE FEDERALIST. 179 

ter. In rendering the concurrence of less than the whole number 
of stales sufficient, it loses again the federal, and partakes of the 
national character. 

The proposed constitution, therefore, even when tested by the 
rules laid down by its antagonists, is, in strictness, neither a na- 
tional nor a federal constitution ; but a composition of both. In 
its foundation .it is federal, not national : in the sources from 
which the ordinary powers of the government are drawn, it is 
partly federal, and partly national ; in the operation of these 
powers, it is national, not federal ; in the extent of them again, 
it is federal, not national ; and finally in the authoritative mode 
of introducing amendments, it is neither wholly federal nor 
wholly national. PUBLIUS. 



BY JAMES MADISON. 

THE SAME SUBJECT FURTHER EXAMINED. 

The second point to be examined is, whether the convention 
were authorized to frame, and propose this mixed constitution. 

The powers of the convention ought^ in strictness, to be deter- 
mined, by an inspection of the commissions given to the members 
by their respective constituents. As all of these, hovvever, had 
reference, either to the recommendation from the meeting at An- 
napolis, in September, 1786, or to that from congress, in February, 
1787, it will be sufficient to recur to these particular acts. 

The act from Annapolis recommends the " appointment of 
^' commissioners to take into consideration the situation of the 
'(United States; to devise such further provisions, n^ shall appear 
" to them necessary to render the constitution of the federal 
" government adequate to the exigencies of the union ; and to re- 
" port such an act for that purpose, to the United States in con- 
" gress assembled, as when agreed to by them, and afterwards 
'■' confirmed by the legislature of every state, will efiectually pro- 
'■'■ vide for the same." 

The recommendatory act of congress is in the words follow- 
ing : '^ Whereas, there is provision in the articles of confedera- 
^' tion and perpetual union, for making alterations therein, by the 
" assent of a congress of the United States, and of the legisla- 
'' tures of the several states ; and whereas experience hath evinc- 
*' ed, that there are defects in the present confederation ; as a 
'■'■ mean to remedy which, several of the states, and particularly 
'■'■ the state of New Yor^, by express instructions to their dele- 



180 THE FEDERALIST. 

" gates in congress, have suggested a convention for the purposes 
" expressed in the following resolution ; and such convention ap- 
" pearing to be the most probable mean of establishing in these 
" states a firm national government : — 

^^ Resolved, — That in the opinion of congress, it is expedient^ 
" that un the 2d Monday of May next, a convention of delegates, 
" who shall have been appointed by the several states, be held at 
" Philadelphia, for the sole and express purpose of revising the 
" articles of cor federation, and reporting to congress and the sev- 
" eral legislatures, such alterations and provisions therein, as 
" shall, when agreed to in congress, and confirmed by the states, 
" render the federal constitution adequate to the exigencies of 
^^ government and the preservation of the union.^^ 

From these two acts, it appears, 1st, that the object of the con- 
vention was to establish, in these states, a firm national govern- 
ment ; 2d, that this government was to be such as would be ade- 
quate to the exigencies of governnfient, and the preservatiori of 
the union ; 3d, that these purposes were to be effected by altera- 
tions and provisions in the aiHicles of confederation, as it is ex- 
pressed in the act of congress ; or by such further provision as 
should appear necessary, as it stands in the recommendatory act 
from Annapolis ; 4th, that the alterations and provisions were to 
be reported to congress, and to the states, in order to be agreed to 
by the former and confirmed by the latter. 

From a coniparison, and fair construction of these several njodes 
of expression, is to be deduced the authority under which the 
convention acted. They were to frame a national government, 
adequate to the exigencies of government, and of the union ; and 
to. ,rfcduce the articles of confederation into such form as to ac- 
complish these purposes. 

There are two rules of construction, dictated by plain reason, as 
well as founded on legal axioms. The one is, that every 4)art of 
the expression ought, if possible, to be allowed some meaning, 
and be made to conspire to some common end. The other is, that 
where the several parts cannot be made to coincide, the less im- 
portant should give way to the more important part : the means 
should be sacrificed to the end, rather than the end to the means. 

Suppose then, that the expressions defining the authority of the 
convention, were irreconcilably at variance- with each other ; that a 
national and adequate government could not possibly, in the judg- 
ment of the convention, be effected by alterations dind. provisions 
in the articles of confederation; which part of the definition 
ought to have, been embraced, and which rejected? Which was 
the more important ; which the less important part ? Which the 
end ; which the means ? Let the most scrupulous expositors of 
delegated powers ; let the most inveterate objectors against thosa 
exercised by the convention, answer these questions. Let them 



THE FEDERALIST. 181 

declare, whether it was of most importance to the happiness of 
the people of America, that the articles of confederation should 
be disregarded, and an adequate government be provided, and the 
union preserved ;' or that an adequate government should be omit- 
ted, and the articles of confederation preserved. Let them de- 
clare, whether the preservation of these articles was the end, for 
securing which a reform of the govennnent was to be introduced 
as the means ; or whether the establishment of a government, 
adequate to the national happiness, was the end at which these 
articles themselves originally aimed, and to which they ought, as 
insufficient means, to have been sacrificed. 

But is it necessary to suppose, that these expressions are abso- 
lutely irreconcilable to each other ; that no alterations or provi- 
sions in the articles of the confederation, could possibly mould 
them into a national and adequate government ; into such a gov- 
ernment as has been proposed by the convention ? 

" No stress, it is presumed, will, in this case, be laid on the title; 
a change of that could never be deemed an exercise of ungranted 
power. Alterations in the body of the instrument are expressly 
authorized. New provisions therein are also expressly authorized. 
Here then is a power to change the title ; to insert new articles ; to 
alter old ones. Must it of necessity be admitted, that this power 
is infringed, so long as a part of the old articles remain ? Those 
who maintain the affirmative, ought at least to mark the boundary 
between authorized and usurped innovations ; between that degree 
of change which lies within the compass of alterations and fur- 
ther provisions, and that which amounts to a transtnutation of 
the government. Wilt it be said, that the alterations ought not to 
have touched the substance of the confederation ? The states 
would never have appointed a convention with so much solemnity, 
nor described its objects with so much latitude, if some substantial 
reform had not been in contemplation. Will it be said that the 
fundamental principles of the confederation were not within the 
purview of the convention, and ought not to have been varied ? I 
ask what are these principles ? Do they require, that in the estab- 
lishment of the constitution, the states should be regarded as dis- 
tinct and independent sovereigns ? They are so regarded by the 
constitution proposed. Do they require, that the members of the 
government should dervive their appointment from the legislatures, 
not from the people of the states ? One branch of the new gov- 
ernment is to be appointed by these legislatures ;,and under the 
confederation, the delegates to congress may all be appointed im- 
mediately by the people ; and in two states* are actually so ap- 
pointed. Do they require, that the powers of the government 
should act on the states, and not immediately on individuals ? In 

* Connecticut and Rhode Island. 



182 THE FEDERALIST. 

some instances, as has been shown, the powers of the new govern- 
ment will act on the states in their collective characters. In some 
instances also, those of the existing government act immediately 
on individuals. In cases of capture ; of piracy ; of the post office ; 
of coins, weights, and measures ; of trade with the Indians ; of 
claims under grants of land, by different states ; and, above all, 
in the case of trials by courts-martial in the army and navy, by 
which death may be inflicted without the intervention of a jury, 
or even of a civil magistrate ; in all these cases, the powers of the 
confederation operate immediately on the persons and interests of 
individual citizens. Do these fundamental principles require, par- 
ticularly, that no tax should be levied, without the intermediate 
agency of the states ? The confederation itself, authorizes a di- 
rect tax, to a certain extent, on the post office. The power of 
coinage, has been so construed by congress as to levy a tribute 
immediately from that source also. But pretermitting these in- 
stances, was it not an acknowledged object of the convention, and 
the universal expectation of the people, that the regulation of trade 
should be submitted to the general government, in such a form as 
would render it an immediate source of general revenue ? Had 
not congress repeatedly recommended this measure, as not incon- 
sistent with the fundamental principles of the confederation ? Had 
not every state but one ; had not New York herself, so far com- 
plied with the plan of congress, as to recognii^e the principle of 
the innovation ? Do these principles, in fine, require that the 
powers of the general government should be limited, and that be- 
yond this limit, the states should be left in possession of their 
sovereignty and independence ? We have seen, that in the new 
government, as in the old,, the gejieral powers are limited ; and 
that the states, in all unenumerated cases, are left in the enjoy- 
ment of their sovereign and independent jurisdiction. 

Truth is, that the great principles of the constitution proposed 
by the convention, may be considered less, as absolutely new, than 
as the expansion of principles which are found in the articles of 
confederation. The misfortune under the latter system has been, 
that these principles are so feeble and confined, as to justify all 
the charges of inefficiency which have been urged against it ;v 
and to require a degree of enlargement, which gives to the new 
system the aspect of an entire transformation of the old. 

In one particular, it is admitted, that the convention have de- 
parted from the tenor of their commission. Instead of reporting a 
plan requiring the confirmation of all the states, they have report- 
ed a plan, which is to be confirmed, and may be carried into effect, 
by nitie states only. It is worthy of remark, that this objection, 
though the most plausible, has been the least urged in the publica- 
tions which have swarmed against the convention. The forbear- 
ance can only have proceeded from an irresistible conviction of the 



THE FEDERALIST. 183 

absurdity of subjecting the fate of twelve states to the perverse- 
ncss or corruption of a thirteenth ; from the example of inflexi- 
ble opposition given by a majority of one sixtieth of the people 
of America, to a measure approved and called for by the voice of 
twelve states, comprising fifty-nine sixtieths of the people ; an 
example still fresh in the memory and indignation of every citi- 
zen who has felt for the wounded honor and prosperity of his 
country. As this objection, therefore, has been in a manner 
waived by those who have criticised the powers of the conven- 
tion, I dismiss it without further observation. 

The third point to be inquired into is, how far considerations of 
duty arising out of the case itself, could have supplied any defect 
of regular authority. 

In the preceding inquiries, the powers of the convention have 
been analyzed and tried with the same rigor, and by the same 
rules, as if they had been real and final powers, for the establish- 
ment of a constitution for the United States. We have seen, in 
what manner they have borne the trial even on that supposition. 
It is time now to recollect, that the powers were merely advisory 
and recommendatory ; that they were so meant by the states, 
and so understood by the convention ; and that the latter have 
accordingly planned and proposed a constitution, which is to be 
of no more consequence than the paper on which it is written, 
unless it be stamped with the approbation of those to whom it is 
addressed. This reflection places the subject in a point of view 
altogether difterent, and will enable us to judge with propriety of 
the course taken by the convention. 

Let us view the ground on which the convention stood. It may 
be collected from their proceedings, that they were deeply and 
unanimously impressed with the crisis, which had led their country 
almost with one voice, to make so singular and solemn an experi- 
ment, for correcting the errors of a system, by which this crisis had 
been produced; that they were no less deeply and unanimously 
covinced, that such a reform as they have proposed, was absolute- 
ly necessary to effect the purposes of their appointment. It could 
not be unki^wn to them, that the hopes and expectations of the 
great body of citizens, throughout this great empire, were turned 
with the keenest anxiety, to the event of their deliberations. They 
had every reason to believe, that the contrary sentiments agitated 
the minds and bosoms of every external and internal foe to the liber- 
ty and prosperity of the United States. They had seen in the origin 
and progress of the experiment, the alacrity with which the pro^ 
position, made by a single state, (Virginia,) towards a partial amend- 
ment of the confederation had been attended to and promoted. 
They had seen the liberty assumed by a very few deputies, from a 
very few states, convened at Annapolis, of recommending a great 
and critical object, wholly foreign to their commission, not only 



184 THE FEDERALIST. 

justified by the public opinion, but actually carried into effect, by 
twelve out of the thirteen states. They had seen, in a variety of 
instances, assumptions by congress, not only of recommendatory 
but of operative powers, warranted in the public estimation, by oc- 
casions and objects infinitely less urgent than those by which their 
conduct was to be governed. They must have reflected, that in 
all great changes of established governments, forms ought to give 
way to substance ; that a rigid adherence in such cases to the 
former, would render nominal and nugatory, the transcendent and 
precious right of the people to "abolish or alter their governments 
*' as to them shall seem most likely to affect their safety and happi- 
" ness ;"* since it is impossible for the people spontaneously and 
universally, to move in concert towards their object ; and it is there- 
fore essential, that such changes be instituted by some informal 
aiid unauthorized propositions, made by some patriotic and re- 
spectable citizen, or number of citizens. They must have recol- 
lected, that it was by this irregular and assumed privilege, of pro- 
posing to the people plans for their safety and happiness, that the 
states were first united against the danger with which they were 
threatened by their ancient government ; that committees and con- 
gresses were formed for concentrating their efforts, and defending 
their rights ; and that conventions were elected in the several 
states, for establishing the constitutions under which they are now 
governed. Nor could it have been forgotten that no little ill-timed 
scruples, no zeal for adhering to ordinary forms, were anywhere 
seen, except in those who wished to indulge, under these masks, 
their secret enmity to the substance contended for. They must 
have borne in mind, that as the plan to be framed and proposed, 
was to be submitted to the people themselves, the disapprobation 
of this supreme authority would destroy it forever : its approbation 
blot out all antecedent errors and irregularities. It might even 
have occurred to them, that where a disposition to cavil prevailed, 
their neglect to execute the degree of power vested in them, and 
still more their recommendation of any measure whatever, not 
warranted by their commission, would not less excite animadver- 
sion, than a recommendation at once of a measure fuHy commen- 
surate to the national exigencies. 

Had the convention, under all these impressions, and in the 
midst of all these considerations, instead of exercising a manly 
confidence in their counti*y, by whose confidence they had been so 
peculiarly distinguished, and of pointing out a system capable in 
their judgment, of securing its happiness, taken the cold and sul- 
len resolution of disappointing its ardent hopes, of sacrificing sub- 
stance to forms, of committing the dearest interests of their coun- 
try to the uncertainties of delay, and the hazard of events ; let me 

* Declaration of Independence. 



THE FEDERALIST. 185 

ask the man who can raise his mind to one elevated conception, 
who can awaken in his bosom one patriotic emotion, what judg- 
ment onght to have been pronounced by the impartial world, by 
the friends of mankind, by every virtuous citizen, on the conduct 
and character of this assembly ? Or if there be a man whose pro- 
pensity to condemn is susceptible of no control, let me then ask, 
what sentence he has in reserve for the twelve states who usurped 
the power of sending deputies to the convention, a body utterly 
uriknown to their constitutions ; for congress, who recommended 
the appointment of this body, equally unknown to the confedera- 
tion ; and for the state of New York, in particular, who first urged 
and then complied with this unauthorized interposition ? 

But that the objectors may be disarmed of every pretext, it shall 
be granted for a moment, that the convention were neither author- 
ized by their commission, nor justified by circumstances m pro- 
posing a constitution for their country : does it follow that the 
constitution ought, for that reason alone, to be rejected ? If, ac- 
cording to the noble precept, it be lawful to accept good advice 
even from an enemy, shall we set the ignoble example, of refus- 
ing such advice even when it is offered by our friends ? The 
prudent inquiry, in all cases, ought surely to be, not so much 
fro7n whom the advice comes, as whether the advice be good. 

The sum of what has been here advanced and proved, is, that 
the charge against the convention of exceeding their powers, ex- 
cept in one instance little urged by the objectors, has no foundation 
to support it ; that if they had exceeded their powers, they were 
not only warranted, but required, as the confidential servants of 
their country, by the circumstances in which they were placed, to 
exercise the liberty which they assumed ; and that finally, if they 
had violatgd both their powers and their obligations, in proposing 
a constitution, this ought nevertheless to be embraced, if it be 
calculated to accomplish the views and happiness of the people 
of America. How far this character is due to the constitution, 
is the subject under investigation. PUBLIUS. 



BY JAMES MADISON. 



GENERAL VIEW OF THE POWERS PROPOSED TO BE VESTED IN THE UNION. 

The constitution proposed by the convention, may be consider- 
ed under two general points of. view. The first relates to the 
sum or quantity of power which it vests in the government, includ- 
ing the restraints iitiposed on the states. The second, to the par- 

24 



186 THE FEDERALIST. 

ticular structure of the governmeut, and the distribution of this 
power among its several branches. 

Under the first view of the subject, two important questions 
arise : 1. Whether any part of the powers transferred to the geu- 
eral government, be unnecessary or improper ? 2. Whether the 
entire mass of them be dangerous to the portion of jurisdiction 
left in the several states ? 

Is the aggregate power of the general government greater than 
ought to have been vested in it ? This is the first question. 

It cannot have escaped those, who have attended with candor to 
the arguments employed against the extensive powers of the gov- 
' ernmenl, that the authors of them have very little considered, how 
far those powers were necessary means of attaining a necessary 
end. They have chosen rather to dwell on the inconveniences 
which must be unavoidably blended with all political advantages ; 
and on the possible abuses which must be incident to every power 
of .trust, of which a beneficial use can be made. This method of 
handling the subject, cannot impose on the good sense of the peo- 
ple of America. It may display the subtlety of the writer ; it may 
open a boundless field of rhetoric and declamation ; it may inflame 
^the passsions of the unthinking, and may confirm the prejudices of 
the misthinking : but cool and candid people will at once reflect, 
that the purest of human blessings must have a portion of alloy in 
them ; that the choice must always be made, if not of the lesser 
evil, at least of the greater, not the perfect good ; and that in 
every political institution, a power to advance the public happiness- 
involves a discretion which may be misapplied and abused. They 
will see, therefore, that in all cases where power is to be conferred, 
the point first to be decided is, whether such power be necessary 
to the public good ; as the next will be, in case of an affirmative 
decision, to guard as eflectually as possible against a perversion 
of the power to the public detriment. 

That we may form a correct judgment on this subject, it will be 
proper to review the several powers conferred on the government 
of the union ; and that this may be the more conveniently done 
they may be reduced into different classes as they relate to the 
following different objects : 1. Security against foreign danger ; 
2. Regulation of the intercourse with foreign nations ; 3, Main- 
tenance of harmony and proper intercourse among the states; 4, 
Certain miscellaneous objects of general utility ; 5. Restraint of 
the states from certain injurious acts ; 6. Provisions for giving 
due efficacy to all these powers. 

The powers falling within the first class, are those of declaring 
war, and granting letters of marque • of providing armies and 
fleets ; of regulating and calling for^h the militia ; of levying and 
borrowing money. 

Security against foreign danger, is one of the primitive objects of 



THE FEDERALIST. 187 

civil society. It is an avowed and essential object of the Ameri- 
can union. The powers requisite for attaining it must be efFectu- 
ally confided to the federal councils. 

Is the power of declaring war necessary ? No man will an- 
swer this question in the negative. It would be superfluous there- 
fore, to enter into a proof of the affirmative. The existing con- 
federation establishes this povi^er in the most ample form. 

Is the power of raising armies, and equipping fleets necessary? 
This is involved in the foregoing power. It is involved in the 
power of self-defence. 

But was it necessary to give an indefinite power of raising 
TROOPS, as well as providing fleets ; and of maintaining both in 
peace, as well as in vvar? 

The answer to these questions has been too far anticipated in \ 
another place, to admit an extensive discussion of them in this 
place. The answer indeed seems to be so obvious and conclusive, 
as scarcely to justify such a discussion in any place. With what 
color of propriety, could the force necessary for defence be lim- 
ited, by those who cannot limit the force of offence ? If a fed- 
eral constitution could chain the ambition, or set bounds to the 
exertions of all other nations, then indeed might it prudently 
chain the discretion of its own government, and set bounds to 
the exertions for its own safety. / 

How could a readiness for war in time of peace be safely pro- 
hibited,- unless we could prohibit, in like manner, the preparations 
and establishments of every hostile nation ? The means of secur-">> 
ity can only be regulated by the means and the danger of attkck. 
They will in fact be ever determined by these rules, and by no 
others. It is in vain to oppose constitutional barriers to the im- | 
pulse of self-preservation. It is worse than in vain ; because it ' 
plants in the constitution itself necessary usurpations of power, 
every precedent of which is a germ of unnecessary and multiplied 
repetitions. If one nation maintains constantly a disciplined army, 
ready for the service of ambition or revenge, it obliges the most 
pacific nations, who may be within the reach of its enterprises, to 
take corresponding precautions. The fifteenth century Was the 
onhappy epoch of military establishments in time of peace. They 
were introduced by Charles VII. of France. All Europe has fol- 
lowed, or been forced into the example. Had the example not 
been followed by other nations, all Europe must long ago have 
worn the chains of a universal monarch. Were every nation, ex- 
cept France, now to disband its peace establishments, the same 
event might follow. The veteran legions of Rome were an over- 
match for the undisciplined valor of all other nations, and ren- 
dered her the mistress of the world. 

Not the less true is it, that the liberties of Rome proved the final 
victim to her military triumphs ; and that the liberties of Europe, 



]88 THE FEDERALIST. 

as far as they ever existed, have, with few exceptions, been the 
price of her military establishments. A standing force, therefore, 
is a dangerous, at the same time that it may be a necessary pro- 
vision. On the smaller scale, it has its inconveniences. On an 
extensive scale, its consequences may be fatal. On any scale, it 
is an object of laudable circumspection and precaution. A wise 
nation will combine all these considerations ; and, whilst it does 
not rashly preclude itself from any resources which may become 
essential to its safety, will exert all its prudence in diminishing 
both the necessity and the danger of resorting to one, which may 
be inauspicious to its liberties. 

The clearest marks of this prudence are stamped on the proposed 
constitution. The union itself, which it cements and secures, 
destroys every pretext for a military establishment which could be 
dangerous. America united, with a handful of troops, or without 
a single soldier, exhibits a more forbidding posture to foreign am- 
bition, than America, disunited, with a hundred thousand veterans 
ready for combat. It was remarked, on a former occasion, that 
the want of this pretext had saved the liberties of one nation in 
Europe. Being rendered, by her insular situation, and her maritime 
resources, impregnable to the armies of her neighbors, the rulers 
of Great Britain have never been able, by real or artificial dan- 
gers, to cheat the public into an extensive peace establishment. 
The distance of the United States from the powerful nations of 
the world, gives them the same happy security. A dangerous es- 
tablishment can never be necessary or plausible, so long as they 
continue a united people. But let it never for a moment be for- 
gotten, that they are indebted for this advantage to their union 
alone. The moment of its dissolution will be the date of a new 
order of things. The fears of the weaker, or the ambition of the 
stronger states, or confederacies, will set the same example in the 
new as Charles VII. did in the old world. The example will be 
followed here, from the same motives which produced universal 
imitation there. Instead of deriving from our situation the pre- 
cious advantage which Great Britain has derived from hers, the 
face of America will be but a copy of that of the continent of Eu- 
rope. It will present liberty everywhere crushed between stand- 
ing armies, and perpetual taxes. The fortunes of disunited Ameri- 
ca, will be even more disastrous than those of Europe. The sour- 
ces of evil in the latter are confined to her own limits. No 
superior powers of another quarter of the globe intrigue among 
her rival nations, inflame their mutual animosities, and render 
them the instruments of foreign ambition, jealousy, and revenge. 
In Ameirca, the miseries springing from her internal jealousies, 
contentions, and wars, would form a part only of her lot. A 
plentiful addition of evils, would have their source in that relation 



THE FEDERALIST. 189 

in which Europe stands to this quarter of the earth, and which 
no other quarter of the earth bears to Europe. 

This picture of the consequences of disunion cannot be too 
highly colored, or too often exhibited. Every man who loves 
peace ; every man who loves his country ; every man who loves 
liberty, ought to have it ever before his eyes, that he may cherish 
in his heart a due attachment to the union of America, and be 
able to set a due value on the means of preserving it. 

Next to the effectual establishment of the uriion, the best possi- 
ble precaution against danger from standing armies, is a limitation 
of the term for which revenue may be appropriated to their sup- 
port. This precaution the constitution has prudently added. I 
will not repeat here the observations, which I flatter myself have 
placed this subject in a just and satisfactory light. But it may 
not be improper to take notice of an argument against this part of 
the constitution, which has been drawn from the policy and prac- 
tice of Great Britain. It is said, that the continuance of an army 
in that kingdom, requires an annual vote of the legislature : 
whereas the American constitution has lengthened this critical pe- 
riod to two years. This is the form in which the comparison is 
usually stated to the public : but is^t a just form ? Is it a fair com- 
parison ? Does the British constitution restrain the parliamentary 
discretion to one year ? Does the American impose on the con- 
gress appropriations for two years ? On the contrary, it cannot be 
unknown to the authors of the fallacy themselves, that the British 
constitution fixes no limit whatever to the discretion of the legis- 
lature, and that the American ties down the legislature to two 
years, as the longest admissible term. 

Had the argument from the British example been truly stated, 
it would have stood thus : the term for which supplies may be 
appropriated to the army establishment, though uniimited by the 
British constitution, has nevertheless in practice been limited by 
parliamentary discretion to a single year. Now, if in Great Brit- 
ain, where the house of commons is elected for seven years ; 
where' so great a proportion of the members are elected by so 
small a proportion of the people ; where the electors are so cor- 
rupted by the representatives, and the representatives so corrupt- 
ed by the crown, the representative body can possess a power to 
make appropriations to the army for an indefinite term, without 
desiring, or without daring, to extend the term beyond a single 
year; ought not suspicion herself to blush, in pretending that the 
representatives of the United States, elected freely by the whole 
BODY of the people, every second year, cannot be safely entrust- 
ed with a discretion over such appropriations, expressly limited to 
the short period of tavo y^v^ars ? 

A bad cause seldom fails to betray itself. Of this truth, the 
management of the opposition to the federal government, is an un- 



190 THE FEDERALIST. 

varied exemplification. Bat among all the blunders which have 
been committed, none is more striking than the attempt to enlist 
on that side, the prudent jealousy entertained by the people, of 
standing armies. The attempt has awakened fully the public at- 
tention to that important subject ; and has led to investigations 
which must terminate in a thorough and universal conviction, not 
only that the constitution has provided the most effectual guards 
against danger from that quarter, but that nothing short of a con- 
stitution fully adequate to the national defence, and the preserva- 
tion of the union, can save America from as many standing armies, 
as it may be split into states or confederacies ; and from such a 
progressive augmentation of these establishments in each, as Will 
render them as burdensome to the properties, and ominous to the 
liberties of the people, as any establishment that can become ne- 
cessary, under a united and efficient government, must be toler- 
able to the former and safe to the latter. 

The palpable necessity of the power to provide and maintain a 
navy, has protected that part of the constitution against a spirit of 
censure, which has spared few other parts. It must indeed be 
numbered among the greatest blessings of America, that as her 
union will be the only source of her maritime strength, so this will 
be a principal source of her security against danger from abroad. 
In this respect, our situation bears another likeness to the insular 
advantage of Great Britain. The batteries most capable of repel- 
ling foreign enterprises on our safety, are happily such as can 
never be turned by a perfidious government against our liberties. 

The inhabitants of the Atlantic frontier, are all of them deeply 
interested in this provision for naval protection. If they have 
hitherto been suffered to sleep quietly in their beds ; if their pro- 
perty has remained safe against the predatory spirit of licentious 
adventurers ; #f their maritime towns have not yet been compelled 
to ransom themselves from the terrors of a conflagration, by yield- 
ing to the exactions of daring and sudden invaders, these instan- 
ces of good fortune are not to be ascribed to the capacity of the 
existing government for the protection of those from whom it 
claims allegiance, but to causes that are fugitive and fallacious. 
If we except perhaps Virginia and Maryland, which are peculiarly 
vulnerable on their eastern frontiers, no part of the union ought to 
feel more anxiety on this subject than New York. Her seacoast is 
extensive.' A very important district of the state is an island. 
The state itself is penetrated by a large navigable river for more 
than fifty leagues. The great emporium of its commerce, the 
great reservoir of its wealth, lies every moment at the mercy of 
events, and may be almost regarded as a hostage for ignominious 
compliances with the dictates of a foreign enemy ; or even with 
the rapacious demands of pirates and barbarians. Should a war 
be the result of the precarious situation of European affairs, and 



THE FEDERALIST. 191 

aH the unruly passions attending it be let loose on the ocean, our 
escape from insults and depredations, not only on that element, 
but every part of the other bordering on it, will be truly miracu- 
lous. ]n the present condition of America, the states more im- 
mediately exposed to these calamities have nothing to hope from 
the phantom of a general government which now exists ; and if 
their single resources were equal to the task of fortifying them- 
selves against the danger, the objects to be protected would be 
almost consumed by the means of protecting them. 

The power of regulating and calling forth the militia, has 
been already sufficiently vindicated and explained. 

The power of levying and borrowing money, being the sinew of 
that which is to be exerted in the national defence, is properly 
thrown into the same class with it. This power, also, has been 
examined already with much attention, and has, I trust, been 
clearly shown to be necessary, both in the extent and form given 
to it by the constitution, I will address one additional reflection 
only, to those who contend that the power ought to have been 
restrained to external taxation— -by which they mean, taxes on 
articles imported from other countries. It cannot be doubted, 
that this will always be a valuable source of revenue ; that for a 
considerable time, it must be a principal source ; that at this mo- 
ment, it is an essential one. But we may form very mistaken 
ideas on this subject, if we do not call to mind in our calculations, 
that the extent of revenue drawn from foreign commerce, must 
vary with the variations, both in the extent and the kind of im- 
ports ; and that these variations do not correspond with the pro- 
gress of population, which must be the genral measure of the 
public wants. As long as agriculture continues the sole field of 
labor, the importation of manufactures must increase as the con- 
sumers multiply. As soon as domestic manufactu^'es are begun 
by the hands not called for by agriculture, the imported manufac- 
tures will decrease as the numbers of people increase. In a more 
remote stage, the imports may consist in a considerable part of 
raw materials, which will be wrought into articles for exportation, 
and will therefore, require rather the encouragement of bounties, 
than to be loaded with discouraging duties. A system of gov- 
ernment, meant for duration, ought to contemplate these revolu- 
tions, and be able to accommodate itself to them, ^ 

Some, who have not denied the necessity of the power of taxa- 
tion, have grounded a very fierce attack against the constitution, 
on the language in which it is defined. . It has been urged and 
echoed, that the power " to lay and collect taxes, duties, imposts, 
" and excises, to pay the debts, and provide for the common de- 
" fence and general welfare of the United States," amounts to an 
unlimited commission to exercise every power, which may be al- 
leged to be necessary for the common defence or general welfare. 



192 THE FEDERALIST. 

No stronger proof could be given of the distress under which 
these writers labor for objections, than their stooping to such a 
misconstruction. 

Had no other enumeration or definition of the powers of the 
congress been found in the constitution, than the general expres- 
sions just cited, the authors of the objection might have had some 
color for it; though it would have been difficult to find a reason 
for so awkward a form of describing an authority to|legislate in 
all possible cases. A power to destroy the freedom of the press, 
the trial by jury, or even to regulate the course of descents, or 
the forms of conveyances, must be very singularly expressed by 
the terms " to raise money for the general welfare." 

But what color can the objection have, when a specification of 
the objects alluded to by these general teinns, immediately follows : 
and is not even separated by a longer pause than a semicolon ? If 
the different parts of the same instrument ought to be so expound- 
ed, as to give meaning to every part which will bear it ; shall one 
part of the same sentence be excluded altogether from a share in 
the meaning ; and shall the more doubtful and indefinite terms be 
retained in their full extent, and the clear and precise expressions 
be denied any signification whatsoever ? For what purpose could 
the enumeration of particular powers be inserted, if these and all 
others were meant to be included in the preceding general power ? 
Nothing is more natural or common, than first to use a general 
phrase, and then to explain and qualify it by a recital of particu- 
lars. But the idea of an -enumeration of particulars which neither 
explain nor qualify the general meaning, and can have no other 
effect than to confound and mislead, is an absurdity, which as we 
are reduced to a dilemma of charging either on the authors of the 
objection or on the authors of the constitution, we must take the 
liberty of supposing, had not its origin with the latter. 

The objection here'is the more extraodinary, as it appears, that 
the language used by the convention is a copy from the articles of 
confederation. The objects of the union among the states, as de- 
scribed in article third, are, " their common defence, security of their 
"liberties, and mutual and general welfare." The terms of article 
eighth are still more identical : "All charges of war, and all other 
"expenses, that shall be incurred for the common defence or gen- . 
"eral welfare, and allowed by the United States in congress, shall 
" be defrayed out of a common treasury," &c. A similar lan- 
guage again occurs in article ninth. Construe either of these arti- 
cles by the rules which would justify the construction put on the 
new constitution, and they vest in the existing congress a power to 
legislate in all cases whatsoever. But what would have been 
thought of that assembly, if, attaching themselves to these general 
expressions, and disregarding the specifications which* ascertain and 
limit their import, they had exercised an unlimited power of pro- 



THE FEDERALIST. 193 

viding for the common defence and general welfare? I appeal to 
llie objectors themselves, whether they would in that case have 
employed the same reasoning in justification of congress, as they 
now make use of against the convention. How difficult it is for 
error to escape its own condemnation ! PUBLIUS. 



BY JAMES MADISON. 
THE SAMR VIEW CONTINUED. 



The second class of powers, lodged in the general government, 
consists of those which regulate the intercourse with foreign na- 
tions, to wit: to make treaties; to send and receive ambassadors, 
other public ministers, and consuls; to define and punish piracies 
and felonies committed on the high seas, and offences against the 
!aw of tiations ; to regulate foreign commerce, including a power 
to prohi!>it, after the yeaf 1808, the importation of slaves, and to 
lay an intermediate duty of ten dollars per head, as a discourage- 
ment to such importations. 

This class of powers forms an obvious and essential branch of 
the federal administration. If we are to be one nation in any re- 
spect, it clearly ought to be in respect to other nations. 

The powers to make treaties, and to send and receive ambassa- 
dors, speak their own propriety. Both of them are comprised in 
the articles of confederation ; with this difference only, that the 
former is disembarrassed by the plan of the convention of an ex- 
ception, under which treaties might be substantially frustrated by 
regulations of the states; and that a power of appf)inting and re- 
ceiving "other public ministers and consuls," is expressly and very 
properly added to the former f)rovisian concerning ambassadors. 
The term anibassador, if taken strictly, as seems to be required by 
the second of the articles of confederation, comprehends the high- 
est grade only of public rninistei's ; atid excludes the grades which 
the United States will be most likely to prefer, where foreign em- 
bassies may be necessary. And imder no latitude of construction 
will the term comprehend consuls. Yet it has been found expe- 
dient, and has been the practice of congress, to employ the infe- 
rior grades of public ministers; and to send and receive consuls. 

It is true, that where treaties of commerce stipulate for the mu- 
tual appointment of consuls, whose functions are connected with 
commerce, the admission of foreigii consuls may fall within the 
power of makmg commercial treaties; atid that where no such 
treaties exist, the mission of American consuls into foreign coun- 
25 



194 THE FEDERALIST. 

tries may perhaps be covered under the authority, given by the 
ninth article of the confederation, to appoint all such civil oilficer^ 
as n^iay be necessary for managing the general affairs of the Unit- 
ed States. But the admission of consuls into the United States, 
where no previous treaty has stipulated it, seems to have been 
nowhere provided for. A supply of the omission is one of the 
lesser instances, in which the convention have improved on Ihe 
model before them. But the most minute prbvisions become im- 
portant when they tend to obviate the necessity or the pretext for 
gradual and unobserved usurpations of power. A list of the 
cases in which congress have been betrayed, or forced by the de- 
fects of the confederation, into violations of their chartered au- 
thorities, would not a little surprise those who have paid no attention 
to the subject ; and would be no inconsiderable argument in favor 
of the new constitution, which seems to have provided no less 
studiously for the lesser, than the more obvious and striking de- 
fects of -the old. 

The power to define and punish piracies and felonies commit- 
ted on the high seas, and offences against the law of nations, be- 
longs with equal propriety to the general government, and is a 
still greater improvement on the articles of confederation. 

These articles contain no provision for the case of offences 
against the law of nations; and consequently leave it in the pow- 
er of any indiscreet member to embroil the confederacy with for- 
eign nations. 

The provision of the federal articles on the subject of piracies 
and felonies, extends no further than to the establishment of 
courts for the trial of these offences. The definition of piracies 
might perhaps, without inconveniency, be left to the law of na- 
tions ; though a legislative definition of them is found in most 
municipal codes. A definition of felonies on the high seas, is ev- 
idently requisite. Felony is a term of loose sigtiification, even in 
the common law of England ; and of various import in the statute 
law of that kingdom. But neither the common, nor the statute 
law of that, or of any other nation, ought to be a standard for the 
proceedings of this, unless previously made its own by iegisfa- 
tive adoption. The meaning of the term, as defined in the codes 
of the several states, would be as impracticable as the former 
would be a dishonorable and illegitimate guide. It is not pre- 
cisely the same in any two of the states ; and varies in each with 
every revision of its criminal laws. For the sake of certaiijty 
and uniformity, therefore, the power of defining felonies in this 
case, was in every respect necessary and proper. 

The regulation of foreign commerce, having fallen within sev- 
\ fjral views which have been taken of this subject, has beet» too 
fully discussed to need additional proofs here of its being proper- 
ly submitted to the federal administration. 



THE FEDERALIST. 195 

, It were doubtless to be wished, that the power of prohibiting 
the importation of slaves, had not been postponed until the year 
1808, or rather, that it had been siiffered to have immediate op- 
eration. Hilt it is not difficult to account, either for this restrie- 
tiou on the general government, or for the manner in which the 
whole clause is expressed. It ouglit to be considered as a great 
point gained in favor of humanity, that a , period of twenty yeaps 
may terminate forever within these states, a traffic which basso 
long and so loudly upbraided the barbarism of modern policy j 
that within that period, it will receive a considerable discourage- 
ment from the federal government, and may be totally abolished, 
by a concurrence of the few states which continue the unnatural 
traffic, in the prohibitory example which has been given by so 
great a majority of the union. Happy would it be for the unfor- 
tunate Africans, if an equal prospect lay before them, of being 
redeemed from the oppressions of their European brethren ? 

Attempts have been made to pervert this clause into an objec- 
tion against the constitution by representing it on one side as a 
criminal toleration of an illicit practice ; and on another, as calcu- 
lated to prevent voluntary and beneficial emigrations from Europe 
to America, I mention these misconstructions, not with a view 
to give them an answer, for they deserve none ; but as specimens 
of the manner and spirit, in which some have thought fit to con- 
duct their opposition to the proposed government. 

The powers included in the third class, are those which pro- 
vide for the harmony and proper intercourse among the states. 

Under this head, might be included the particular restraints im- 
posed on the authority of the states, and certain powers of the ju- 
dicial department; but the former are reserved for a distinct class, 
and the latter will be particularly examuied, when w"e arrive at 
the structure and organization of the government. I shall confine 
myself to a cursory review of the remaining powers comprehended 
under tl:is third description, to wit: to regulate commerce among 
the several states, and the Indian tribes; to coin money, regulate 
the value thereof, atid of foreign coin ; to provide for the punish- 
ment of counterfeiting the current coin and securities of the Uni- 
ted States; to fix the standard of weights and measures; to es- 
tablish an uniform rule of naturalization, and uniform laws of 
bankruptcy ; to prescribe the manner in which the public acts, 
records, and judicial proceedings of each state shall be proved, 
and the effect they shall have in other states; and to establish 
post offices and post roads. 

The defect of power in the existing confederacy, to regulate the 
commerce between its several members, is in the number of those 
which have been clearly pointed out by experience. To the proofs 
and remarks which former papers have brought into view on this 
subject, it may be added, that without this supplemental provision, 



196 THE FEDERALIST. 

fxhoi great and essential power of regulating foreign commerce, 
/ wonid finve been incomplete and iueftectnal. A very material ob- 
ject of this power was the relief of the states which import and ex- 
port through other states, from the i in proper, coritnbmions levied 
on them by the latter. Were these artnierfy to regulate the trade . 
between state and state, it must be foreseen, that ways would be 
found out, to load the articles of import and export, during the 
passage through their jurisdiction, with duties which would fall on 
the makers of the latter, and the consumers of the former. We 
may be assured, by past experience, that such a practice would be 
introduced by future contrivances; and both by that and a com- 
mon knowledge of human affairs, that it would nourish unceasing 
animosities, and not improbably terminate in serious interruptions 
of the public tranquillity. To those who do not view the question 
through the mt^dium of passion, or of interest, the desire of the 
commercial states to collect, in any form, an indirect revenue from 
their uncommercial neighbors, must appear not less impolitic than 
it is unfair; since it would stimulate the injured party, by resent- 
ment as well as interest, to resort to less convenient channels for 
their foreign trade. But the mild voice of reason, pleading the 
cause of an enlarged and permanent interest, is but too often 
drowned before public bodies as well as individuals, by the cla- 
mors of an impatient avidity for immediate and immoderate gain. 
The necessity of a superintending authority over the reciprocal 
trade of confederated states, has been illustrated by other examples 
as well as our own. In Switzerland, where the union is so very 
slight, each canton is obliged to allow to merchandize, a passage 
through its jurisdiction into other cantons, without an augmenta- 
tion of the tolls. In Germany, it is a law of the empire, that the 
princes and states shall not lay tolls or customs on bridges, rivers, 
or passages, without the consent of the emperor and diet ; though 
it appears from a quotation in an antecedent paper, that the prac- 
tice in this, as in many other instances in that confederacy, has 
not followed the law, and has produced there the mischiefs which 
have been foreseen here. Among the restraints imposed by the 
miion of the Netherlands on its members, one is, that they shall 
not establish imposts disadvantag^eous to their neighbors, without 
the general permission. 

The regulation of commerce with the Indian tribes is very pro- 
perly unfettered from two limitations in the articles of confedera- 
tion, which render the provision obscure and contradictory. The 
po\ver is there restrained to Indians, not members of any of the 
states, and is not to violate or infringe the legislative right of any 
state within its own limits. What description of Indians are to be 
deemed members of a state, is not yet settled ; and has been a 
question of frequent perplexity and contention in the federal coun- 
cils. And how the trade with Indians, though not members of a 



THE FEDERALIST. 197 

state, yet residing within its legislative jurisdiction, can be regu- 
lated hy an external anthoiity, without so far intniding on the 
internal rights of legislation, is absolutely inconjprehensihle. This 
is not the only case, in wfiich the articles of confederation have 
inconsiderately endeavored to accomplish impossibilities; to re- 
concile a partial sovereignty in the union, with complete sove- 
reignty in the states ; to subvert a mathematical axiom, by tak- 
ing away a part, and letting the whole remain. 

All that need be remarked on the power to coin money, regu- 
late the value thereof, and of foreign coin, is, that by providing 
for this last case, the constitution Ijas supplied a material omission 
in the articles of confederation. The authority of the existing 
congress is restrained to the regulation of coin siruck by their 
own authority, or that of the respective states. It must be seen 
at once, that the proposed uniformity in the value of the cm rent 
coin, might be destroyed by subjecting that of foreign coin to the 
diffeient regulations of the different states. 

The punishment of counterfeiting the public secm-ities, as well 
as the current coin, is submitted of course to that authority which 
is to secure the value of both. 

The regulation of weights and measures is transferred from the 
articles of confederation, and is founded on like considerations 
with the preceding power of regulating coin. 

The dissimilarity in the rules of naturalization has long been re- 
marked as a fault in our system, an<l as laying a foundation for ui- 
tricate and delicate questions. iLn the fourth article of the confed- 
eration, it is declared, "that the free^ inhahitants of each of these 
"states, paupers, vagabonds, and fugitives from jusiice excepted, 
"shall be entitled to all privileges and immunities o^ free citizens 
"in the several states; and' the people ol each state shall, in every 
"other, enjoy all the privileges of trade and commerce," &c. 
There is a confusion of language here, which is remarkable. Why 
the terms free inhabitants are used in one part of the article, 
free citizens in another, and penp'e in another ; or what was 
meant by superadding to "all privileges and itnmunities of free 
"citizens" — "all the privileges of trade and commerce," cannot 
easily be determined. It seems to be a construction scarcely 
avoidable, however, that those who come under the denomination 
oi free inhabitants of a state, although not citizens of such state, 
are entitled, in every other state, to all the privileges oi free citi- 
zens of the latter; that is, to greater privileges than they may be 
entitled to in their own state : so that it may f)e in the power of a 
particular state, or rather every state is laid under a necessity, not 
only to confer the rights of citizenship in other states upon any 
whom it may admit to such rights within itself, but upon any 
whom it may allow to become inhabitants within its jurisdiction. 
But were an exposition of the term "inhabitants" to be admitted 



19S THE FEDERALIST. 

which would confine the st.ipnlated privileges to citizens alone, 
the diffienlty is diminished only, not removed. The very irn- 
proj/er power would still be retained by each state of naturalizing 
aliens ui every other state. In one state, residence for a short 
term confers all the rights of citizenship: in another, qualifica- 
tions of <;reater importance are required. An alien, therefore, 
legally incapacitated for certain rights in the latter, may by pre- 
vious residence only in the former, elude his incapacity ; and 
thus the law of one state be preposterously rendered paramount 
to the law of another, within the jurisdiction of the other. 

We owe it to mere casualty, that very serious embarrassments 
on this subject have been hitherto escaped. By the laws of several 
states, certain descriptions of aliens, who had rendered themselves 
obnoxious, were laid under interdicts inconsistent, not only with 
the lights of citizenship, but wiih the privileges of residence. What 
would have l)een the consequence, if such persons, by residence 
or otherwise, had acquired the character of citizens under the laws 
of another state, and then asserted their rights as such, both to resi- 
dence and citizenship, within the state proscribing them ? What- 
ever the legal consequences might have been, other consequences 
would probably have resulted of too serious a nature, not to be 
provided against." The new constitution has accordingly, with 
great firopriety, made provision against them, and all otiiers pro- 
ceeding from the defect of the confederation on this head, by au- 
thorizing the general government to establish an uniform rule of 
naturalization throughout the United States. 

'W' The power of establishing uniform laws of bankruptcy, is so 

':, intimately connected with the regulation of commerce, and will 
/' prevent so many frauds where the parties or their property may 

|| lie, or be removed into different states, that the expediency of it 

\) seems not likely to be drawn into question. *> 

The power of prescribing, by general laws, the manner in which 
the public acts, records, and judicial proceedings of each state, shall 
be proved, and the effect they shall have in other states, is an 
evident and valuable improvement on the clause relating to this 
subject in the articles of confederation. The meaning of the latter 
is extremely indeterminate; and can be of little importance un- 
der any interpretation which it will bear. The power here estab- 
lished may be rendered a very convenient instrument of justice 
and be particularly beneficial on the borders of contiguous states, 
where the effects liable to justice may be suddenly and secretly 
translated in any stage of the process, within a foreign jurisdiction. 
The power of establishing post roads must, in every view, be a 
harmless power; and may perhaps, by judicious management be- 
come productive of great public conveniency. Nothing which 
tends to facilitate the intercourse between the states can be deem- 
ed unworthy of the public care. PUBLIUS. 



THE FEDERALIST 199 

BY JAMES MADISON. 
THE SAME VIEW CONTINUED. 

^Yhis, fourth class comprises the following miscellaneous powers ; 

1. A power to " promote the progress of science and nsefnl 
*' arts, by- securing for a limited tinie,jto authors and inventors, the 
•'exclusive right to their respective writings and discoveries." 

The utility of this power will scarcely be questioned. The 
copyright of autfiors has been solemnly adjudged in Great Britain, 
to be a right at common law. The right to useful inventions, 
seems with equal reason to belong to the inventors. The public 
good fully coincides in both cases with the claims of individuals. 

The states cannot separately make etfectual provision for either 
of the cases, and most of them have anticipated the decision of 
this point, by laws passed afc the iiistance of congress. 

2. " To exercise exclusive legislation in all cases whatsoever, 
" over such district, (not exceeding ten miles square.) as may by 
"cession of particidar states, and the acceptance of congress be- 
" come tlie seat of the government of the United States; and to 
"exercise like authority over all [places purchased by the consent 
'• of the legislature of the sta'e, in which the same shall be, for the 
"erection of forts, magazines, arsenals, dockyards, and other 
" needfid buildings." 

The indispensable necessity of complete authority at the seat of 
government, carries its own evidence with it. It is a power exer- 
cised by every legislature of the nni<Mi, I might say of the world, 
by virtue of its general supremacy. Without it, not only the pub- 
lic authority mighi be insulted and its proceedings be interru|'ted 
with impunity, but a dependence of the menjbers of the general 
government on the state couiprehending the seat of the govern- 
ment, for protection in the exercise of their duty, might bring on 
the national councils an imputation of awe or influence, equally 
dishfinoraftle to the government and dissatisfactory to the other 
members of the confederacy. This consideration has the more 
weigfit, as the gradual accumidation of public improvements at 
the stationary residence of the governmetjt, would be both too 
great a pid)lic pledge to be left in the hands of a single state, and 
woidd create so many obstacles to a removal of the government, 
as still fruther to abridge its necessary independence. The ex- 
tent of this federal district is sufficiently circumscribed to satisfy 
every jealousy of an o[)posite nature. And as it is to be appro- 
priated to this use with the consent of the state ceding it ; as the 
State will no doubt provide in the compact for the rights, and the 
consent of the citizens inhabiting it ; as the inhabitants will find 



200 THE FEDERALIST. 

sufficient inducements of interest to become willing parties to the 
cession ; as they will have had their voice in the election of the 
government, which is to exercise authority over them ; as a mu- 
nicipal legislature for local purposes, derived from their own suf- 
frages, will of course be allowed them ; and as the authority of 
the legislature of the state, and of the inhabitants of the ceded 
part of it, to concur in the cession, will be derived from the 
whole people of the state, in their adoption of the constitution, 
every imaginable objection seems to be obviated. 

The necessity of a like authority over forts, magazines, &c,, es- 
tablished by the general government, is not less evident. The 
public money expended on such places, and tlie public property 
def)osited in them, require, that they should be exempt from the 
authority of the pcirticular state. Nor would it be proper for the 
places on which the security of the entire union may depend, to 
be in any degree dependent on a particular member of it. All ob- 
jections and scruples are here also obviated, by requiring the con- 
currence of the states concerned in every such estaLlishment. 

3. " To declare the putjishment of treason, but no attainder of 
"treason shall work corruption of blood, or forfeiture, except dur- 
" ing the life of the person attainted." 

As treason may be committed against the Um'ted States, the au- 
thority of the United States ought to be enabled to punish ir ; 
but as new fangled and artificial treasons have been the great en- 
gijies by which violent factions, the natural offspring of free gov- 
ernments, have usually wreaked their alternate malignity on each 
other, the convention have, with great judgment, opposed a bar- 
rier to this peculiar danger, by inserting a constitutional defini- 
tion of the crime, fixing the proof necessary for conviction oi it, 
and restraining the congress, even in punishing it, from extending 
the consequences of guilt beyond the person of its author. 

4. " To admit new states nito the union : but no new state shall 
"be formed or erected within the jurisdiction of any other state; 
" nor any state be formed by the junction of two or more states, 
"or parts of states, without the consent of the legislatures of the 
" states concerned, as well as of the gongress." 

In the articles of confederation, no provision is found on this 
important subject. Canada was to be admitted of right, on her 
joining in the measures of. the United States; an'd the other ro/o- 
nies, by which were evidently meant, the other Hritish colonies, at 
the discretion of nine states. The eventual establishment of new 
stales, seems to have been overlooked by the compilers of that in- 
strimient. We have seen the inconvenience o( this omission, and 
the assumption of power into which congress have been led by it. 
With great propriety therefore has the new system sup()lied the de- 
fe«t. The general precaution, that no new states shall be formed, 
without the concurrence of the federal authority, and that rf the 



THE FEDERALIST. 201 

states concerned, is consonant to the principles which ought lo 
govern such transactions. The particniar precaution against the 
erection of new states, by the partition of a state without its con- 
sent, quiets the jealousy of the larger states ; as that of the smaller 
is quieted by a like precaution, against a junction of states with- 
out their consent. 

5. '' To dispose of, and make all needful rules and regulations, 
*' respecting the territory or other property, belonging to the Unit- 
"ed States, with a proviso, that nothing in the constitution shall 
"be so construed, as to prejudice any claims of the United States. 
" or of any particular state." 

This is a power of very great importance, and required by con- 
siderations, similar to those which show the propriety of the form- 
er. The proviso annexed, is proper in itself, and was probably 
rendered absolutely necessary by jealousies and questions con- 
cerning the western territory sufficiently known to, the public. 

6. " To guaranty to every state in the union a republican form 
" of government ; to protect each of them against invasion, and 
"on application of the legislature or of the executive, (when the 
" legislature cannot be convened,) against domestic violence." 

]n a confederacy founded on republican principles, and compos- 
ed of republican members, the superintending government ought 
clearly to possess authority to defend the system against aristocrat- 
ic or monarchical innovations. The more intimate the nature of 
such an union may be, the greater interest have the members in, 
the political institutions of each other; and the greater right to 
insist, that the forms of government under which the compact 
was entered into, should be substantially maintained. 

But a right implies a remedy ; and where else could the remedy 
be deposited, than where it is deposited by the constitution ? Gov- 
ernments of dissimilar principles and forms have been found less 
adapted to a federal coalition of any sort, than those of a kindred 
nature. " As the confederate republic of Germany," says Montes- 
quieu, '• consists of free cities, and petty states, subject to differ- 
"ent princes, experience shows us that it is more imperfect than 
"that of Holland and Switzerland." "Greece was undone," he 
adds, " as soon as the king of Macedon obtained a seat among 
" the Amphyctions." In the latter case, no doubt, the dispropor- 
tionate force, as well as the monarchical form of, the new confede- 
rate, had its share of influence on the events. 

It may possibly be asked, what need there could be of such a 
precaution, and whether it may not become a pretext for alterations 
in the state governments, without the concurrence of the states 
themselves. These questions admit of ready answers. If the in- 
terposition of the general government should not be needed, the 
provision for such an event will be a harmless superfluity only in 
the constitution. But who can say, what experiments may bepro- 

26 



202 THE FEDERALIST. 

duced by the caprice of particular sta'tes, by the ambition of enter- 
prising leaders, or by the intrigues and influence of foreign pow- 
ers? To the second question it may be answered, that if the 
general government should interpose by virtue of this constitution- 
al authority, it will be of course bound to pursue the authority. 
But the authority extends no farther than to a guaranty of a re- 
publican form of government, which supposes a preexisting gov- 
ernment of the form which is to be guarantied. As long, there- 
fore, as the existing republican forms are continued by the states, 
they are guarantied by the federal constitution. "Whenever the 
* states may choose to substitute other republican forms, they havea 
right to do so, and to claim the federal guaranty for the latter. 
The only restriction imposed on them is* that they shall not ex- 
change republican for anti-republican constitutions ; a restriction 
which, it is presumed, will hardly be considered as a grievance, 

A protection against invasion is due, from every society to the 
parts composing it. The latitude of the expression here used 
seems to secin'e each state, not only. against foreign hostility but 
against ambitious or vindictive enterprises of its more powerful 
neighbors. The history, both of ancient and modern confedera- 
cies, proves that the weaker members of the union ought not to 
be insensible to the policy of this article. 

Protection against domestic violence is added with equal pro- 
priety. It has been remarked, that even among the Swiss cantons, 
which, properly speaking, are not under one government, provis- 
ion is made for this object ; and the history of that league informs 
us that mutual aid is frequently claimed and afforded; and as 
well by the most democratic, as the other caritons. A recent and 
well known event among ourselves has warned us to be prepared 
for emergencies of a like nature. 

At first view, it might seem not to square with the republican 
theory, to suppose, either that a majority ha'^e not the right, or 
that a minority will have the force, to subvert a government ; and 
consequently, that the federal interposition can never be required, 
but when it would be improper. But theoretic reasoning, in this 
as in most other cases, must be qualified by the lessons of practice. 
Why may not illicit combinations, for purposes of violence, be 
formed as well by a majority of a state, especially a small state, 
as by a majority of a county, or a district of the same state ; and 
if the authority of the state ought in the latter case to protect the 
local magistracy, ought not the federal authority in the former to 
support the state authority ? Besides, there are certain parts of 
the state constitutions, which are so interwoven with the federal 
constitution, that a violent blow cannot be given to the one, 
without communicating the wound to the other. Insurrections in a 
state will rarely induce a federal interposition, unless the number 
concerned in them bear some proportion to the friends of govern- 



THE FEDERALIST. 203 

ment.' It will be much better, that the violence in such cases 
should be repressed by the superintending power, than that the 
majority should be left to maintain their cause by a bloody and 
obstinate contest. The existence of a right to interpose, will 
generally prevent the necessity of exerting it. 
\ Is it true, that force and right are necessarily on the same side in 
r^nblican governments? May not the minor party possess such 
a superiority of pecuniary resources, of the military talents and ex- 
perience, or of secret succors fro«i foreign powers, as will render 
it superior also in an appeal to the sword? May not a more com- 
pact and advantageous position tin'n the scale on the same side, 
against a superior number so situated as to be less capable of a 
prompt and collected exertion of its strength ? Nothing can be 
more chimerical than to imagine, that in a trial of actual force, 
victory may be calculated by the rules which prevail in a census 
of the inhabitants, or which determine the event of an election ! 
May it not happen, in fine, that the minority of citizens may be- 
come a majority of persons, by the accession of alien residents, 
of a casual concourse of adventiu'ers, or of those whom the con- 
stitution of the state has not admitted to the rights of suffrage? 
I lake no notice of an unhappy species of population abounding 
in some of the states, who, during the calm of regular govern- 
ment, are sunk below the level of men ; but who, in the tem- 
pestuous scenes of civil violence, may emerge into the human 
character, and give a superiority of strength to any party with 
which they may associate themselves. 

In cases where it may be doubtful on which side justice lies, 
what better umpires coidd be desired by two violent factions, 
flying to arms and tearing a state to pieces, than the representa- 
tives of confederate states, not heated by the local flame. To the 
impartiality of judges, they would unite the affection of friends. 
Happy would it be, if such a remedy for its infirmities could be 
enjoyed by all free governments; if a project equally effectual, 
could be established for the universal peace of mankind ! 

Should it be asked, what is to be the redress for an insurrection 
pervading all the states, and comprising a superiority of the entire 
force, though not a constitutional right? The answer must be, 
that such a case, as it would be without the compass of human 
remedies, so it is fortunately not within the compass of human 
probability; and that it is a sufficient recommendation of the fed- 
eral constitution, that it diminishes the risk of calamity, for which 
no possible constitution can provide a cure. 

Among the advamages of a confederate republic, enumerated 
by M<intesquieu, an important one is, " that should a popular in- 
"surrection happen in one of the states, the others are able to 
'•quel! it. Should abuses creep into one part, they are reformed 
*' by those that remain sound." 



204 THE FEDERALIST. 

7. "To consider all debts contracted, and engagements entered 
"into, before the adoption of this constitution, as being no less 
■"valid against the United States under this constitution, than un- 
*'der the confederation." 

This can only be considered as a declaratory proposition ; and 
may have been inserted, among other reasons, for the satisfaction 
of the foreign creditors of the United States, who cannot be 
strangers to the pretended doctrine, that a change in the political 
form of civil society, has the magical eJffect of dissolving its moral 
obligations. 

Among the lesser criticisms which have been exercised on the 
constitution, it has been remarked, that the validity of engagements 
ought to have been inserted in favor of the United States, as well 
as against them ; and in the spirit which usually characterizes little 
critics, the omission has been transformed and magnified into a plot 
against the national rights. The authors of this discovery may be 
• told, what few others need be informed of, that as engagements 
are in their nature reciprocal, an assertion of their validity on one 
side, necessarily involves a validity on the other side; and that 
as the article is merely declaratory, the establishment of the prin- 
ciple in one case, is sufficient for every case. They may be fur- 
ther told, that every constitution must limit its precautions to 
dangers that are not altogether imaginary ; and that no real dan- 
ger can exist that the government would dare, with, or even with- 
out, this constitutional declaration before it, to remit the debts 
justly due to the public, on the pretext here condemned. 

8. "To provide for amendments to be ratified by three-fourths 
"of the states under two exceptions only." 

That useful alterations will be suggested by experience, could 
not but be foreseen. It was requisite, therefore, that a mode for 
introducing them should be provided. The mode preferred by the 
convention seems to be stamped with every mark of propriety. It 
guards equally against that extreme facility, which would render 
the constitution too mutable ; and that extreme difficulty, which 
might perpetuate its discovered faults. It moreover equally ena- 
bles the general and the state governments to originate the amend- 
ment of errors, as they may be pointed out by the experience on 
one side, or on the other. The exception in favor of the equality 
of suffrage in the senate, was probably meant as a palladium to the 
residuary sovereignty of the states, implied and secured by that 
jprinciple of representation in one branch of the legislature ; and 
was probably itjsisted on by the states particularly attached to that 
equality. The other exception must have been admitted on the 
same considerations which produced the privilege defended by it. 

9. " The ratification of the conventions of nine states, shall be 
'"sufficient for the establishment of this constitution between the 
"states ratifying the same." ' 



THE FEDERALIST, 205 

This article speaks for itself. The express authority of the 
■people alone could give due validity to the constitution. To 
have required the unanimous ratification of the thirteen states, 
would have subjected the essential interests of the whole, to the 
caprice or corruption of a single member. It would have mark- 
ed a want of foresight in the convention, which our own experi- 
ence would have rendered inexcusable. 

Two questions of a very delicate nature present themselves on 
this occasion : — 1. On what principle the confederation, which 
stands in the solemn form of a compact among the states, can be 
superseded without the unanimous consent of the parties to it ? 
2. What relation is to subsist between the nine or more states 
ratifying the constitution, and the remaining few who do not be- 
come parties to it ? 

The first question is answered at once by recurring to the abso- 
lute necessity of the case ; to the great principle of self-preserva- 
tion ; to the transcendent law of nature and of nature's God, 
which declares that the safety and happiness of society are the ob- 
jects at which all political institutions aim, and to which all such 
institutions must be sacrificed. Perhaps, also, an answer may be 
found without searching beyond the principles of the compact it- 
self. It has been heretofore noted amoiig the defects of the con- 
federation, that in many of the states, it had received no higher 
sanctidn than a mere legislative ratification. The principle of reci- 
procality seems to require, that its obligation on the other states 
should be reduced to the same standard. A compact between in- 
dependent sovereigns, founded on acts of legislative authority, can 
pretend to no higher validity than a league or treaty between the 
parties. It is an established doctrine on the subject of treaties, that 
all the articles are mutually conditions of each other ; that a breach 
of any one article is a breach of the whole treaty : and that a 
breach, committed by either of the parties, absolves the others, and 
authorizes them, if they jilease, to pronounce the compact violated 
and void. Should it unhappily be necessary to appeal to these del- 
icate truths, for a justification for dispensing with the consent of 
particular states to a dissolution of the federal pact, will not the 
complaining parties find it a difficult task to answer the midtipli- 
ed and important infractions, with which they may be confront- 
ed ? The time has been, when it was incumbent on us all to 
veil the ideas which this paragraph exhibits. The scene is now 
changed, and with it the part which the same motives dictate. 

The second question is not less delicate ; and the flattering pros- 
pect of its being merely hypothetical, forbids an over curious dis- 
cussion of it. It is one of those cases which must be left to pro- 
vide for itself. In general, it may be observed, that although no 
political relation can subsist between the assenting and dissenting 
states, yet the moral relations will remain uncanceled. The claims 



206 THE FEDERALIST. 

of justice, both on one side and on the other, will be in force, and 
niust be fulfilled ; the rights of humanity must in all cases be duly 
and mutually respected ; whilst considerations of a common inter- 
est, and above all, the remembrance of the endearing scenes which 
are past, and the anticipation of a speedy triimiph over the obsta- 
cles to reunion, will, it is hoped, not urge in \ain moderation on 
one side, and prudence on the other. PUBLIUS. 



« 

BYJAMES MADISON. 
THE SAME VIEW CONTINUED AND CONCLUDED. 

A fifth class of provisions in favor of the federal authority, 
consists of the following restrictions on the authority of ihe sev- 
eral states. 

1. "No state shall enter into any treaty, alliance, or confedera- 
" tion ; grant letters of marque and reprisal ; coin money ; emit 
" bills of credit; make any thing but gold and silver a legal ten- 
" der in payment of debts; pass any bill of attainder, e.v post 
"facto law, or law impairing the obligation of contracts ; or grant 
"any title of nobility." 

The prohibition against treaties, alliances, and confederations; 
makes a piart of the existing articles of union; and, for reasons 
which need no explanation, is copied into the new constitution. 
The prohibition of letters of marque, is another part of the old 
system, but is somewhat extended in the new. According to the 
former, letters of marque could be granted by the states after a 
declaration of war; according to the latter, these licenseis must 
be obtained, as well during the war, as previous to its declaration, 
from the government of the United States. This alteration is 
fully justified by the advantage of uniformity in all pohits which 
relate to foreign powers ; and of immediate responsibility to the 
nation in all those, for wfhose conduct the nation itself is to be 
responsible. 

The right of coining money, which is here taken from the states, 
was left in their hands by the confederation, as a concurrent right 
with that of congress, under an exception in favor of the exclusive 
right of congress to regulate the alloy and value. In this instance 
also, the new provision is an improvement on the old. Whilst the 
alloy and value depended on the general authority, a right of coin- 
age in the particular states could have no other effect than to mul- 
tiply expensive mints, and diversify the forms and weights of the 
cii:culating pieces. The latter inconveniency defeats one purpose' 



THE FEDERALIST. • 207 

for which the power was originally submitted to the federal head : 
and as far as the former might prevent aa inconvenient remittance 
of. gold and silver to the central mint for recoinage, the end can 
be as well attained by local mints established under the general 
authority. 

The extension of the projjibition to bills of credit, must give 
pleasure to every citizen, in proportion to his love of justice and his 
knowledge of the true springs of public prosperity. The loss which 
America has sustained since the peace, from the pestilent effects 
of paper money'on the necessary confidence between man and man ; 
on the necessary confidence in the public councils ; on the industry 
and morals of the people, and on the character of republican gov- 
ernment, constitutes an enormous debt against the states, charge- 
able with this unadvised measure, which must long remain unsatis- 
fied ; or rather an accumulation of guilt, which can be expiated 
no otherwise than by a voluntary sacrifice on trie altar of justice, 
of the power which has been the instrument of it. In addition to 
these persuasive considerations, it may be observed, that the same 
reasons which show the necessity of denying to the states the pow- 
er of regulating coin, prove with equal force, that they ought not' 
to be at liberty to substitute a paper mrdium, in tlie place of coin. 
Had every state a right to regulate the value of its coin, there 
might be as many different currencies as states; and thus, the in- 
tercourse among them would be impeded ; retrospective alterations 
in its value might be made, and thus the citizens of other states be 

. injured, and animosities be kindled among the states themselves. 
The subjects of foreign powers might suffer from the same cause, 
and hence the union be discredited and embroiled by the indiscre- 
tion of a single member. No one of these mischiefs is less inci- 
dent to a power in the states to emit paper money, than to coin 

- gold or silver. The power to make any thing but gold and silver 
a tender in payment of debts, is withdrawn from the states, oji,^ 
the same principle with that of issuing a paper currency. *'^'' 

Bills of attainder, ex post facto laws, and laws impairing the 
obligation of contracts, are contrary to the first principles of the 
social compact, and to every principle of sound legislation. The 
two former are expressly prohibited by the declarations prefixed to 
some of the state constitutions, and all of them are prohibited by 
the spirit and scope of these fundamental charters. Our own ex- 
perience has taught us nevertheless, that additional fences against 
these dangers ought not to be omitted. Very properly, therefore, 
have the convention added this constitutional bulwark in favor of 
personal security and private rights ; and I am nuich deceived, if 
they have not, in so doing, as faithfully consulted the genuine sen- 
timents as the undoubted interests of their constituents. The so- 

: bar people of America are weary of the fluctuating policy which has 



208 THE FEDERALIST. 

directed the public councils. They have seen with regret and with 
indignation, that sudden changes, and legislative interferences, in 
cases affecting personal rights, become jobs in the hands of enter- 
prising and influential speculators ; and snares to the more indus- 
trious and less informed part of the community. They have seen 
too, that one legislative interference is but the first link of a long 
chain of repetitions ; every subsequent interference being naturally 
produced by the effects of the preceding. They very rightly infer 
therefore, that some thorough reform is wanting, which will banish 
speculations on public measures, inspire a general prudence and 
industry, and give a regular course to the business of society. 
The prohibition with respect to titles of nobility, is copied from 
the articles of confederation, and needs^ no comment. 

2. ''No state shall, without the consent of the congress, lay any 
" imposts or duti«s on imports or exports, except what may be ab- 
"solntely necessary for executing its inspection laws, and the net 
"produce of all duties and imposts laid by any state on imports 
"or exports, shall be for the use of the treasury of the United 
" States ; and all such laws shall be subject to the revision and con- 
" trol of the congress. No state shall, without the consent of con- 
"gress, lay any duty on tonnage, keep troops or ships of war in 
"time of peace ; enter into any agreement or compact with anoih- 
"er state, or with a foreign power, or engage in war unless actually 
"invaded, or in such imminent danger as will not admit of delay." 

The' restraint on the power of the states over imports and ex- 
ports, is enforced by all the arguments which prove the necessity of 
submitting the regulation of trade to the federal councils. It is 
needless, therefore, to remark further on this head, than that the 
manner in which the restraint is qualified, seems well calculated at 
once to secure to the states a reasonable discretion in providing for 
the conveniency of their imports and exports, and to the United 
States a reasonable check against the abuse of this discretion. The 
remaining particulars of this clause, fall within reasonings vvhich 
are either so obvious, or have been so fully developed, that they 
may be passed over without remark. 

The sixth and last class, consists of the several pov/ers and pro- 
visions, by which efficacy is given to all the rest. 

I. " Of these the first is, the power to make all laws which 
"shall be necessary and proper for carrying into execution the 
" foregoing powers, and all other powers vested by this constitu- 
"tion in the government of the United States, or in any depart- 
" ment or officer thereof." 

Few parts of the constitution have been assailed with more in- 
temperance than this ; yet on a fair investigation of it, as has been 
elsewhere shown, no part can appear more completely invulnerable. 
Without the substanceo( this power, the whole constitution would 
be a dead letter. Those who object to the article, therefore, as a 



THE FEDERALIST. 209 

part of the constitution, can only mean that the form of the pro- 
vision is improper. But have they considered, whether a better 
form could have been substituted ? 

There are four other possible methods, which the convention 
might have taken on this subject. They might have copied the 
second article of the existing confederation, which would have 
prohibited the exercise of any power not expressly delegated ; they 
might have attempted a positive enumeration of the powers com- 
prehended under the general terms "necessary and proper;" they 
might have attempted a negative enumeration of them, by specify- 
ing the powers excepted from the general definition : they might 
have been altogether silent on the subject ; leaving these necessary 
and proper powers, to construction and inference. 

Had the convention taken the first method of adopting the sec- 
ond article of confederation, it is evident that the new congress 
would be continually exposed, as their predecessors have been, to 
the alternative of coi]strunig the term ^'■expressly" with so much 
rigor, as to disarm the government of all real authority whatever, 
or with so much latitude as to destroy altogether the force of the 
restriction. It would be easy to show, if it were necessary, that 
no injportant power, delegated by the articles of confederation, 
has been or can be executed by congress, without recurritig more 
or less to the doctrine of construrtion or implication. As the 
powers delegated inider the new system are more extensive, the 
government which is to administer it would find itself still more 
distressed with the alternative of betraying the j)ublic interest by 
doing nothing; or of violating the constitution by exercising pow- 
ers indispensably necessary and proper ; but, at the same time, not 
expressly granted. 

Had the convention attempted a positive enumeration of the 
powers necessary and proper for carrying their other powers into 
effect ; the attempt would have involved a complete digest of laws 
on every subject to which the constitution relates; accommodated 
too not only to the existing state t)f things, but to all the possible 
changes which futurity may produce ; for in every new application 
of a general pjower, the particular powers, which are the means 
of attaining the object ot the general power, must always neces- 
sarily vary with that object; and be often properly varied whilst 
the object remains the same. 

Had they attempted to enumerate the particular powers or 
means not necessary or proper for carrying the general powers into 
execution, thetask would have been no less chimerical ; and would 
have been liable to this further objection ; that every defect in the 
enumeration, would have been equivalent to a positive grant of au- 
thority. If, to avoid this consequence, they had attempted a par- 
tial eufimeration of the exceptions, and described the residue by 
the general terms, not necessary or proper ; it must have hap- 
27 



210 THE FEDERALIST. 

pened that the enumeration would comprehend a few of the ex- 
cepted powers only ; that these wonld be such as would be leasl 
likely to be assumed or tolerated, because the entnneratioii would 
of course select such as would be least necessary or proper, and 
that the unnecessary and improper powers included in the residu" 
urn, would be less forcibly excepted, than if no partial enumera- 
tion had been made. 

Had the constitution been silent on this head, there can be no 
doubt that all the particular powers requisite as means of executing 
the general powers would have resulted to the government, by un- 
avoidable implication. No axiom is more clearly established in 
law, or it] reason, than that wherever the end is required, the means 
are authorized ; wherever a general power to do a thing is given, 
every particular power necessary for doing it is included. Hail 
this last method, therefore, been pursued by ihe convention, every 
objection now urged against their plan, would remain in all its 
plausibility; and the real inconveniencj'^ would be incurred of not 
removing a pretext which may be seized on critical occasions lor 
drawing into question the essentia! powers of the union. 

If it be asked what is to be the consequence, in case the congr(^ss 
shall misconstrue this part of the constitution, and exercise powers 
not warranted by its true meaning ; 1 answer, the same as if they 
should misconstrue or enlarge any other power vested in them; as 
if the general power had been reduced to particulars, and anyone 
of these were to be violated ; the same in short, as if the slate 
legislatures should violate their resfiective constitutional anthorilieSc 
In the fiist instance, the success of the usurpation will depend on 
the executive and judiciary departments, which are to expoimd 
an'd give effect io the legislative acts ; and in the last resort a rem- 
edy must be obtained from the people, who can, by the election of 
more faithful representatives, annul the acts of the usurpers. The 
truth is, that this ultimate redress may be more confided in against 
unconstitutional acts of the federal, than .of the state legislatines, 
for this plain reason, that as every such act of ihe former, will be 
an invasion of the rights of the latter, these will be ever ready to 
mark the innovation, to sound the alarm to the people, and to ex- 
ert their local ii'fluenre in effecting a change of federal represent - 
atives. Thei'e being no such intermediate body between the state 
legislatures and the people, interested in watching the conduct of 
the former, violations of the state constitutions are snore likely lo 
remain unnoticed and unredressed. 

2. " This constitution and the laws of the United States which 
•'shall be made in pursuance thereof, a'nd all treaties made, or 
"which shall be made, iirjder the authority of the United Stales, 
"shall be the supreme law of the land, and the judges in every 
"slate shall be bound thereby, any thing in the constitution or 
"laws of any state to the contrary notwithstanding." 



THE FEDERALIST. 211 

The indiscreet zeal of the adversaries to the const itntion has 
betrayed them into an attack on this part ofi it also, withont 
which it wonid have been evidently atjd radically defective. To 
be fully sensilile of this, we need (Mily snppose for a momentj 
that the supreiuacy of the stat^ constitutions had been left com- 
plete, by a saving clause in their fiivor. 

In the first place, as these cinsstitutions invest the state legisla- 
tures with absolute sovereignty, in all cases not excepted by the 
existing articles of confederation, a!l the authorities contained in 
the proposed constitution, so. far as they exceed those enumerated 
in the confederation, would have been annulled, and the new 
congress would have been reduced to the same impotent condi- 
tion with their predecessors. 

In the next place, as the constitutions of some of the states do 
not even expressly and fully recognize the existing powers of the 
confederacy, an express saving of the supremacy of the former 
would, in sucli , states, have brought into question every power 
contained in the proposed constitution. 

In the third place, as the constitutions of the states differ much 
from each other, it might happen that a treaty or national law, of 
great and equal importance to the states, would interfere with 
some and not with other constitutions, and would consequently 
be valid in some of the states, at the same time that it would 
have no effect in others. ■ 

In fine, the world would have seen for the first time, a system 
of government founded on an inversion of the fundamental prin- 
ciples of all government ; it would have seen the authority of the 
whole society everywhere suborditiate to the authority of the 
parts; it would have seen a monster, in which the head was un- 
der the direction of the members. 

3. "The senators and representatives, and the members of the 
"several state legislatures; and ail executive and judicial officers, 
^' b(jth of the United States and the several states, shall be bound 
" by oath or affirmation, to support this constitution." 

It has been asked why it was thought necessary, that the state 
magistracy should be bound to support the federal cotistitution, 
and inniecpssary that a like oath should be imposed on the offi- 
cers of the United States, in favor of the state constitutions? 

Several reasons might be assigned for the distinctions. I con- 
tent myself with one, which is obvious and conclusive. The mem- 
bers of the federal government will have no agency in carrying 
the state constitutions into effect. The members and officers of 
the state governments, on the contrary, will have an essential agen- 
cy in giving effect to the federal constitution. The election of the 
president and senate will depend, in all cases, on the legislatures 
of the several states. And the election of the house of represent- 
atives will equally depend on the same authority in the first in- 



212 THE FEDERALIST. 

stance; and will, probably, forever be conducted by the officers, 
and according to the laws of the states. 

4. Among the provisioris for giving efficacy to the federal pow- 
ers, might he added those which belong to the executive and judi- 
cifry departments: hut as these are reserved for particular exami- 
nation in another place, I pass them over in this. 

We have now reviewed, in detail, all the articles composing the 
sum or quantity of power, delegated by the proposed constitution 
to the federal government ; and are brought to this nndeniable con- 
clusion, that no part of the power is unnecessary or improper, for 
accomphshing the necessary objects of the union. The question 
therefore, whether this amount of power shall be granted or not, 
resolves itself into another question, whether or not a government 
commensurate to the exigencies of the union, shall be established ; 
or, in other words, whether the union itself shall be preserved. 

PUBLIUS. 



BY JAMES MADISON. 

A FURTHER DISCUSSION OP THE SUPPOSED DANGER FROM THE POW- 
ERS OP THE UNION, TO THE STATE GOVERNMENTS. 

Having shown, that no one of the powers transferred to the fed- 
eral government is unnecessary or improper, the next question to 
be considered is, whether the whole mass of them will be danger- 
ous to the portion of authority left in the several states. 

The adversaries to the plan of the convention, instead of con- 
sidering in the first place, what degree of power was absolutely nec- 
essary for the purposes of the federal government, have exhausted 
themselves in a secondary inquiry into the possible consequences of 
the proposed degree of power to the governments of the particu- 
lar'slates. But if the union, as has been shown, be essential to 
the security of the people of America against foreign danger ; if 
it be essential to their security against contentions and wars among 
the different states ; if it be essentia! to guard them against those 
violent and oppressive factions, which embitter the blessings of lib- 
erty, and against those military establishments which must gradu- 
ally poison its very fountain ; if, in a word, the union be essential 
to the happiness of the people of America, is it not preposterous, 
to urge as an objection to a government, without which the objects 
of the union cannot be attained, that such a government may der- 
ogate from the importance of the governments of the individual 
states ? Was then the American Revolution effected, was the 



THE FEDERALIST. 213 

American confederacy formed, was the precious blood of thousands 
spilt, and the hard earned snl)stance of millions lavished, not that 
the people of America shonid enjoy peace, liberty and safety ; bnt 
that the governments of tlie individnal states, that partfcniar mii- 
nicif)al establishments, might enjoy a certain extent of power, and 
be arrayed with certain dignities and attributes of sovereignty? 
We have heard of the impious doctrine in the old world, that the 
people were made for kings, not kings for the people. Is the same 
doctrine to be revived in tiie new, in another shape, that the solid 
happiness of the people is to l)e sacrificed to the views of political 
institnlions of a different form? It is too early for politicians to 
presume on our forgetting that the public good, the real welfare of 
the great body of the pe(^ple, is the supreme object to be pursued; 
and that no form of govermnent whatever has any other value, 
than as it may be fitted for the attainment of this object. Were 
the plan of the convention adverse to the public happiness, my 
voice would he, reject the plan. Were the union itself inconsist- 
ent with the public happiness, it would be, abolish the union. In 
like manner, as far as the sovereignty of the states cannot be re- 
conciled to the happiness of the people, the voice of every good 
citizen must be, let the former be sacrificed to the latter. How 
far the sacrifice is necessary, has been shown. How far the uii- 
sacnficed residue will be endangered, is the question before us. 

Several important consideiations have been touched in the 
course of these papers, which discountenance the sup[)Osition, 
that the operation of the federal government will by degrees prove 
fatal to the state governments. The more I revolve the subject, 
the iijore fully I am persuaded, that the balance is much' more 
likely to he disturbed by the preponde;ancy of the last than of 
the first S(;ale. 

We have seen, in all the examples of ancient and modern con- 
federacies, the strongest tendency continually betraying itself in 
the merubers. to despoil the general government of its authorities, 
witli a very ineffectual ca|)acity in the latter to defend itself against 
the encroachments. Although in most of these examples, the sys- 
tem has been so dissimilar from that under consideration, as greatly 
to weaken any inference concerning the latter, from the fate of the 
former; ypt, as the states will retain, under the proposed constitu- 
tion, a very extensive portion of active sovereignty, the inference 
ought not to be wholly disregarded. In the Achasan league, it is 
probable that the federal head had a degree and species of power, 
which save it a considerable likeness to the government framed by 
the conveiition. The Lycian confederacy, as far as its principles 
and form are transmitted, must have borne a still greater analogy 
to it. Yet history does not inform us, that either of them ever de- 
generated, or tended to degenerate, into one consolidated govern- 
ment. Ou the contrary, we know that tiie ruin of one of them 



214 THE FEDERALIST. 

proceeded from the incapacity of the federal antliority to prevent 
the dissensions, and finally the disnnion of the snhordinate au- 
thorities. These cases are the niore worthy of onr attention, as 
the external canses hy which tlie component parts were pressed 
together, were mnch more nnmerons and [)owerhil than in our 
case; and consequently less powerful liganjents within w<-)ijld be 
sufficient to hind the members to the head, and to each other. 

In the feudal system, we liave seen a similar propensity exem- 
plified. Notwithstanding the want of proper sympathy in every 
instance between the local sovereigns and the people, and the sym- 
pathy in some instances between the general sovereign and .the 
latter; it usually liappenedthat the local sovereigns prevailed in 
the rivalship for encroachments. Had no external dangers en- 
forced internal harmony and suhordingtion ; and particularly, had 
the local so'^ereigns possessed the. affections of the |)eo|)le, the 
great kingdoms in Europe woidd at this time consist of as many 
independent princes, as there were formerly feudatory barons. 

The state governments will have the advantage of the federal 
government, whether We compare them in respect to the immedi- 
ate dependence of the one on the other ; to the weight of r'erson- 
al influence which each side will possess; to the powers respec- 
tively vested in tfiem ; to the predilection and probable support of 
the people; to the disposition and faculty of resisting and frustrat- 
ing the measures of each other. 

The state governments may be regarded as constituent an ■ es- 
sential parts of the federal government ; whilst the latter is nowise 
essential to the operation or organization of the former. With- 
out the intervention of the state legislatures, the president of the 
United States cannot be elected at all. 'i'hey must in all cases 
have a great share in his appointment, and will perhaps, in most 
cases, of themselves determine it. The senate will I e elected 
absolutely and exclusively by the state legislatures. Even the 
house of representatives, though drawn immediately from the 
people, will be chosen very much under the uifiuence of (hat 
class of men, whose influence over the people obtains for them- 
selves an election into the state legislatures. Tluis, each of the 
principal branches of the federal government will owe its exist- 
ence more or less to the favor of the state governments, and must 
consequently feel a dependence, which is much more likely to 
beget a disposition too obsequious, than too overbearing towards 
them. On the other side, the component parts of the state gov^- 
ernments will in no instance be indebted for their appointuient to 
the direct agency of the federal goverrjment, and very little, if at 
all, to the local influence of its members. 

The number of individuals emjtloyed under the constitution of 
the United States, will be much smaller than the number employed 
under the particular states. There will consequently be less of 



THE FEDERALIST. 215 

personal influence on the side of the former than of the latter. 
The members of the legislative, executive and jndiciary depart- 
ments of thirteen and more states; the justices of the peace, 
officers of the militia,. ministerial officers of justice, with all the 
county, corporation, and town officers, for three millions and 
more of peo[)le, intermixed, and having particular acquaintance 
with every class and circle of people, must exceed beyond all 
proportion, both in number and intluence, those of every descrip- 
tion who will be employed in the administration of the federal 
system. Compare the members of the three great departments, 
of the thirteen states, excluding from the judiciary department 
the jiistices of the peace, with the members of the corresponding 
departments of the single government of the union ; compare 
the rriilitia officers of three millions of people, with the military 
and marine officers of any establishment, which is within the* 
compass of probability, or, 1 may add, of possibility ; and in this 
view alone, we may pronounce the advaiitage of the states to be 
decisive. If the federal government is to have collect(>rs of rev- 
enue, the state governments will have theirs also. And as those 
of the former will be principally on the seacoast, and not very 
Duuierous, whilst those of the latter will be spread over the face 
of the country, and will be very inimerous, the advantage in this 
view also lies on the same side It is true, that the confederacy 
is to possess, and may exercise the power of collecting internal as 
well as external taxes throughout the states ; Init it is probable 
that this power will not be resorted to, except for sufiplemental 
purposes of revenue ; that an option will ihen be given to the 
states to snpfily their quotas by previous collections of their own ; 
and that the eventual collection, under the imir\ediate authority 
of the union, will generally be made by the officers, and accord- 
ing to the rules ap|)ointed by the several states. Indeed, it is ex- 
tremely probable, that in other instances, particulaily iii the or- 
ganization o{ the judicial power, the officers of the states will be 
clothed with the correspondent authority of the union. Should 
it happen, howeier, that separate collectors of internal revenue 
should be appoiuted under the federal government, the influence 
of the wh<ile number would not bear a compari^cn with that of 
the multitude of state officers in the opposite scale. Within ev- 
ery district, to which a federal collector would be ailotied, there 
would not be less than thirty or forty, or even more offlcers, of 
different descriptions, and many of them persons of character and 
weight, whose influence would lie on the side of the state. 

The f)owers delegated by the proposed constitution to the fed- 
bal government, are few and defined. I'hose which are to re- 
main in the state governments, are numerous and indefinite. The 
former will be exercised principally on external objects, as war, 
peace, negotiation, and foreign commerce; with, which last the 



'I, 



216 THE FEDERALIST. 

power of taxation will, for the ninst part, be connected. The 
powers reserved to the several states will extend to all the objects, 
which, in the ordinary course of affairs, concern the lives, liber- 

" ties and properties of the people ; and the internal order, improve- 
ment, and prosperity of the stale./f 

The operations of ihe federal government will be most exten- 
sive and important in times of war and danger; those of the 
state governments in tin)es of peace and security. As the former 
periods will probably bear a small proportion to the latter, the 
state governments will here enjoy another advanfage over the fed- * 
eral government. The more adequate indeed the federal powers 
may be rendered to the national defence, the less frequent will be 
those scenes of danger which might favor their ascendency over 
the governments of the particular states. 

• If the new constitution be examined with accuracy and can- 
dor, it will be found that the change which it proposes, consists 
much less in the addition of new powers to the union, than in 
the invigoration of its original powers. The regulation of com- 
merce, it is true, is a new power ; but tha4; seems to be an addi- 
tion u^hich i'ew oppose, and from which no apprehensions are en- 
tertained. The powers relating to war and peace, armies and 
fleets, treaties and finance, with the other more considerable pow- 
ers, are all vested in the existing congress by the articles of con- 
federation. The proposed change does not enlarge these powers; 
it only substitutes a more effectual mode of administering them, j/ 
The change relating to taxation, may be regarded as the most im- 
portant : and yet the present congress have as complete authority 
to REQUIRE of the states indefinite supplies of money for the com- 
mon defence atrd general welfare, as the future congress will have 
to require them of individual citizens; and the latter will be 
no more bound than the states themselves have been, to pay the 
quotas respectively taxed on them. Had the states complied 
punctually with the articles of confederation, or could their com- 
pliance have been enforced by as peaceably means as may be 
used with success towards single persons, our past experience is 
very far from coimtenancing an opinion, that the state govern- 
ments would have lost their constitutional powers, and have grad- 
ually undergone an entire consolidation. To maintain that such 
an event would have ensued, would be, to say at once, that the 
existence of the state governments is incompatible with any sys- 
tem whatever, that accomplishes the essential purposes of the 
union. PUBLIUS. 



THE FEDERALIST, 217 

BY JAMES MADISON. 

THE SUBJECT OF THE LAST PAPER RESUMED ; WITH AN EXAMINA- 
TION OP THE COMPARATIVE MEANS OP INFI.UENCB OP THE FEDE- 
RAL AND STATE GOVERNMENTS. 

Resuming the subject of the last paper, I proceed to inquire, 
whether the federal government or the state governments, will 
have the advantage with regard to the predilection and support of 
the people. 

Notwithstanding the different modes in which they are appoint- 
ed, we must consider both of them as substantially dependent on 
the great body of the citizens of the United States. I assume this 
position here as it respects the first, reserving the proofs for another 
filace. The federal and state governments are in fact but different 
agents and trnstees of the people, instituted with different pow- 
ers, and designated for different purposes. The adversaries of 
the constitution seem to have lost sight of the people altogether, 
in their reasonings on this subject ; and to have viewed these differ- 
ent establishments, not only as mutual rivals and enemies, bnt as 
uncontrolled by any common superior, in theirefforts to usurp the 
authorities of each other. These gentlemen must here be remind- 
ed of their error. They must be told, that the ultimate anthority, 
wherever the derivative may be found, resides in the people alone ; 
and that it will not depend merely on the comparative ambition or 
address of the different governments, whether either, or which of 
them, will be able to enlarge its sphere of jurisdiction at the ex- 
pense of the other. Truth, no less than decency, requires, that 
the event in every case, should be supposed to depend on the 
sentiments and sanction of their common constituents. 

Many considerations, besides those suggested on a former occa- 
sion, seem to place it beyond doubt, that the first and most natural 
attachment of the people will be to the governments of their re- 
spective states. Into the administration of these, a greater num- 
ber of individuals will expect to rise. From the gift of these, a 
greater number of offices and emoluments will flow. By the 
superintending care of these, all the more domestic and personal 
interests of the people will be regulated and provided for. With 
the affairs of these, the people will be more familiarly and mi- 
nutely conversant ; and with the members of these, will a greater 
proportion of the people have the ties of personal acquaintance 
and friendship, and of family and party attachments. On the side 
of these, therefore, the popular bias may well be expected most 
strongly to incline. 

Experience speaks the same language in this case. The federal 
28 



218 THE FEDERALIST, 

administration, though hitherto very defective, in comparison with 
what may be hoped under a better system, had, during tlie war, 
and particularly whilst the independent fund of paper emissions 
was in credit, an activity and importance as great as it can well 
have, in any future circumstances whatever. It was engaged too, 
in a course of measnres which had for their object the protection 
of every thing that was dear, and the acquisition of every thing 
that could be desirable to the people at large. It was, neverthe- 
less, invariably found, after the transient enthusiasm for the early 
congresses was over, that the attention and attachment of the 
people were turned anew to their own particular governments ; 
that the federal council was at no time the idol of popular favor ^ 
and that opposition to proposed enlargements of its powers and 
importance, was the side usually taken by the men, who wished 
to build their poHtical consequence on the prepossessions of their 
fellow-citizens. 

If, therefore, as has been elsewhere remarked, the people should 
in future become more partial to the federal than to the state gov- 
ernments, the change can only result from such manifest and ir- 
resistible proofs of a better administration, as will overcome al! 
their antecedent propensities. And in that case, the people ougl;t 
not surely to be precluded from giving most of their confidence 
where they may discover it to be most due : but even in that 
ease, the state governments could have little to apprehend, be- 
cause it is only within a certain sphere, that the federal jiower 
can, in the nature of things, be advantageously admitjistered. 

The remaining points, on which I propose to compare the fede- 
ral and state governments, are the disposition and faculty they 
may respectively possess, to resist and frustrate the measures of 
each other. 

It has been already proved, that the members of the federal will 
be more dependent on the members of the state governments, than 
the latter will be on the former. It has appeared also, that the pre- 
possessions of the people, on whom both will depend, will be more 
on the side of the state governments, than of the federal govern- 
ment. So far as the disposition of each towards the other, may 
be influenced by these causes, the state governmenis must clearly 
have the advantage. But in a distinct and very important point 
of view, the advantage will lie on the same side. The preposses- 
sions, which the members themselves will carry into the federal gov- 
ernment, will generally be favorable to the states; whilst it will 
rarely happen, that the members of the state governments will car- 
ry into the public coimcils a bias in favor of the general govern- 
ment. A local spirit will infallibly prevail much more in the mem- 
bers of congress, than a national spirit will prevail in the legis- 
latures of the particular states. Every one knows, that a great 
proportion of the errors committed by the state legislatures, pro- 



THE FEDERALIST. 219 

ceeds from the disposition of the members to sacrifice the compre- 
hensive and permanent interests of the state, to the particular and 
separate views of tlie counties or districts in which they reside. 
And if they do not sufficiently enlarge their policy to embrace the 
collective welfare of their particular state, how can it be imagined, 
Chat they will make the aggregate prosperity of the union, and the 
dignity and respectability of its government, the objects of their 
affections and cgnsultations? For the same reason, that the mem- 
bers of the state legislatures will be unlikely to attach themselves 
sufficiently to national objects, the members of the federal legisla- 
ture will be likely to attach themselves too much to local objects. 
The states will be to the latter, what counties and towns are to the 
former. Measures will too often be decided according to their 
probable effect, not on the national prosperity and happiness, but 
otj the prejudices, interests, and pursuits of the governments and 
people of the individual states. Wliat is the spirit that has in gen- 
eral characterized the proceedings of congress ? A perusal of their 
journals, as well as the candid acknowledgments of such as have 
had a seat in that assembly, will inform us, that the members have 
but too frequently displayed the character, rather of 'partisans of 
their respective states, than of impartial guardians of a common 
interest ; that where on one occasion, improper sacrifices have been 
made of local considerations to the aggrandizement of the federal 
government, the great interests of the nation have suffered on an 
hmidred, from an undue attention to the local prejudices, interests, 
and views of the particular states. I mean not by these reflections 
to insinuate, that the new federal government will not embrace a 
more enlarged plan of policy, than the existing government may 
have pursued ; much less, that its views will be as confined as those 
of the state legislatures; but only that it will partake sufficiently 
of }he spirit of both, to be disinclined to invade the rights of the 
individual states, or the prerogatives of their governments. The 
motives on the part of the state governments, to augment their 
prerogatives by defalcations from the federal government, will be 
overruled by no reciprocal predispositions in the members. 

Were it admitted, however, that the federal government may feel 
an equal disposition wiih the state governments to extend its power 
beyond the due limits, the latter would still have the advantage in 
the meansof defeating such encroachments. If an act of a par- 
ticular state, though unfriendly to the national government, be gen- 
erally popislar in that state, and should not too grossly violate the 
oaths of the state officers, it is executed immediately'', and, of 
course by means on the spot, and depending on the state alone. 
The opposition of the federal government, or the interposition of 
federal officers, would but inflame the zeal of all parties on the 
side of the state ; and the evil could not be prevented or repaired, 
if at all, without the employment of means which must always be 



220 THE FEDERALIST. 

resorted to with reluctance and difficulty. On the other hand, 
should an unwarrantable measure of the federal goverhnaent be un- 
popular in particular states, which would seldom fail to be the case, 
or evetj a warrantable measure be so, which may sometimes be the 
case, the means of opposition to it are powerful a:id at hand. The 
disquietude of the people ; their repugnance and perhaps refusal, 
to cooperate with the officers of the union ; the frowns of the ex- 
ecutive magistracy of the state ; the embarrassments created by 
legislative devices, which would often he added on such occasions, 
<Vould oppose, in any state, difficulties not to be despised ; would 
form, in a large state, very serious impediments; and where the 
sentiments of several adjoining states happened to be in unison, 
would present obstructions which the federal governmerjt would 
hardly be willing to encounter. 

But ambitious encroachments of the federal government, on the 
authority of the state governments, would not excite the opposition 
of a sit]gle state, or of a few states only. They would be signals 
of general alarm. Every government would espouse the common 
cause. A correspondence would be opened. Plans of resistance 
would be concerted. One spirit would animate and conduct the 
whole. The same combination, in short, would result from nn ap- 
prehension of the federal, as was produced by the dread of a for- 
eign yoke; and unless the projected innovations should be volun-* 
tarily renounced, the same appeal to a trial of force would be made 
in the one case, as was made in the other. But what degree of 
madness could ever drive the federal government to such an ex- 
tremity? In the contest with Great Britain, one part of the em- 
pire was employed against the other. The more numerous part 
invaded the riglits of the less numerous part. The attetnpt was 
unjust and unwise; but it was not in speculation absolutely chi- 
merical. But what would be the contest, in the case we are sup- 
posing? Who would be the pai-ties? A few representatives of 
the people would be opposed to the people themselves; or rather 
one set of representatives would be contending against thirteen 
setfe of representatives, with the whole body of their common 
constituents on the side of the latter. 

The only refuge left for those who prophesy the downfall of the 
state governments, is the visionary supposition that the federal 
government may previously accumulate a military force for the pro- 
jects of ambition. The reasonings contained in these papers must 
have been employed to little purpose indeed, if it could be neces- 
sary now to disprove the reality of this danger, ^''luit the people 
and the states should, for a sufficient period of time, elect an un- 
interrupted succession of men ready to betray both ; that the trai- ' 
tors should, throughout this period, uniformly and systematically 
pursue some fixed plan for the extension of the military establish- 
ment ; that the governments and the people of the states should 



THE FEDERALIST. 221 

silently and patiently behold the gathering storm, and contitjne to 
supply the materials, until it should be prepared to burst on their 
own heads, must appear to every one more like the incoherent 
dreams of a d(-lirious jealousy, or the misjudged exaggerations of a 
coiujterfeit zeal, than like the sober apprehensions of genuine pat- 
riotism. Extravagant as the supposition is, let it however be made. 
Let a regular army, fully equal to the resources of the country, be 
formed ; and let it be entirely at the devotion of the federal gov- 
ernment ; still it would not be going too far to say, that the state 
goveriJinents, with the people on their side, would be able to repel 
the danger. The highest number to which, according to the best 
compiitation, a standing army can be carried in any coutitry, does 
not exceed one hundredth part of the whole number of souls ; or 
one twenty-fifth part of the number able to bear arms. This pro- 
portion would not yield, in the United States, an afmy of more 
than twenty-five or thirty thousand men. To these would be op- 
posed a militia amounting to near half a mil'ion of citizens with 
arms in ilieir hands, officered by men chosen from aniong them- 
selves, fighting for their common liberties, and united and conduct- 
ed by governments possessing their aifections and confidence. It 
may well be doubted, whether a militia thus circumstanced, could 
ever be conquered by such a proportion of regular troops. Those, 
who are best acquainted with tlie late successful resistance of this 
country against the British arms, will be most inclined to deny the 
possibility of it. Besides the advantage of being armed, which the 
Americans possess over the people of almost every other nation, 
the existence of subordinate governments, to which the people are 
attached, and by which the militia officers are appointed, forms a 
barrier, against the enterprises of ambition, more insurmountable 
than any which a simple government of any form can admit of. 
■Notwithstanding the military establishments in the several king- 
doms of Europe, which are carried as far as the public resources 
will bear, the governments are afraid to trust the people with arms. 
And it is not certain, that with this aid alone, they would not be 
able to shake otf their yokes. But were the people to possess the 
additional advantages of local governments chosen by themselves, 
who could collect the national will, and direct the national force, 
and of officers appointed out of the militia, by these governments, 
and attached both to them and to the militia, it may be affirmed 
with the greatest assurance, that the throne of every tyranny in 
Europe would be speedily overturned in spite of the legions which 
surround it. Let us not insult the free and gallant citizens of 
America with the suspicion, that they would be less able to defend 
the rights of which they would be in actual possession, than the 
debased subjects of arbitrary power would be to rescue theirs from 
the hands of their oppressors. Let ns rather no longer insult 
them with the supposition, that they can ever reduce themselves 



222 THE FEDERALIST. 

to the necessity of making the experiment, by a blind and tame 
submission to the long train of insidious measures which must 
precede and produce it. 

The argument under the present head may be put into a very 
concise form, which appears altogether conchisive. Either the 
mode in which the federal governmeMt- is to be constructed, will 
render it sufficiently dependent on the peo|)le, or it will not. On 
the first supposition, it will be restrained by that dependence from 
forming schemes obnoxious to their constituents. "On the other 
supposition, it will not possess the confidence ot the people, and 
its schemes of usurpation will be easily defeated by the stale gov-' 
ernments; which will be supported by the people. 

On simiming up the considerations stated in this and the last pa- 
per, they seem to amount to the most convincing evidence, that 
the powers proposed to be lodged in the federal governtnent, are 
as little formidable to those reserved to the individual states, as 
they are indispensably necessary to accomplish the purposes of 
the union ; and that all those alarms which have been sounded, 
of a meditated and consequential annihilation of the state govern- 
ments, must, on the most favorable interpretation, be ascribed to 
the chimerical fears of the authors of them. PUBLIUS. 



BY JAMES MADISON. 

THE MEANING OP THE MAXIM, WHICH REQUIRES A SEPARATION OP 
THE DEPARTMENTS OP POWER, EXAMINED AND ASCERTAINED. 

Having reviewed the genera! form of the proposed government 
and the general mass of power allotted to it ; I proceed to exam- 
ine the particular structure of this government, and the distribu- 
tion of this mass of power among its constituent parts. 

One of the principle objections inculcated by the more respecta- 
ble adversaries to the constitution, is its supposed violation of the 
political maxim, that the legislative, executive, and judiciary de- 
partments, ought to be separate and distinct. In the structure of 
the federal government, no regard, it is said, seems to have been 
paid to this essential precaution in favor of liberty. The several 
departments of power are distributed and blended in such a man- 
ner, as at once to destroy all symmetry and beauty of form ; and 
to expose some of the essential parts of the edifice to the danger 
of being crushed by the disproportionate weight of other parts. 

No political truth is certainly of p-reater intrinsic value or is 
Stamped with the authority of more enlightened patrons of liberty, 



THE FEDERALIST. 223 

than that on which the ohjection is founded. The accumnlatioa i 
of all powers, legislative, executive, and judiciary, in the same / 
hands, whether of one, a (e\v, or many, and whether hereditary, ( 
self-appointed, or elective, may justly be pronounced the very de- 
finition of tyranny. Were the federal constitution therefore, real- 
ly chargeable with this accumulation of power, or with a mixture 
of powers, having a dangerous tendeircy to such an accumulation, 
no further arguments would be necessary to inspire a universal 
reprobation (tf tlie system. I persuade myself, however, that it 
will be made apparent to every one, that the charge cannot be 
supported, and that the maxim on which it relies has been totally 
misconceived and misa[)plied. In order to form correct ideas on 
this important subject, it will be proper to investigate the sense 
in Vv^hich the preservation of liberty requires, that the three great 
departments of power should be separate and distinct. 

The oracle who is always consulted and cited on this subject, 
is the celebrated Moiitesquieu. If he be not the author of this 
invaluable precept in the science of politics, he has the merit at 
least of displaying and recommending it most effectually to the 
attention of mankind. Let us endeavor, in the first place, to as- 
certain his tneaning on this point. 

The British constitution was to Montesquieu, what Homer has 
been to the didactic writers on epic poetry. As the latter have 
considered the work of the immortal bard, as the perfect model 
from v/liich the principles and rules of the epic art were to be 
drawn, and by which all similar works were to be judged : so 
this great political critic appears to have viewed the constitution 
of England as the standard, or to use his own expression, as the 
mirror of political liberty; and to have delivered in the form of 
elementary truths, the several characteristic priiiciples of that par- 
ticular system. That we may be sure, then, not to mistake his 
meaning in this case, let us recur to the source from which the 
maxim was drawn. 

On the slightest view of the British constitution we must per- 
ceive that the legislative, executive, and judiciary departments, 
are by no means totally separate and distinct from each other. 
The executive magistrate forms an integral part of the legislative 
authority. He alone has the prerogative of making treaties with 
foreign sovereigns, which when made, have, nnder certain limita- 
tions, the force of legislative acts. All the members of the judi- 
ciary department are appointed by him ; can be removed by him 
on the address of the two houses of parliament, and form, when 
he pleases to consult them, one of his constitutional councils. One 
branch of the legislative department, forms also a great constitu- 
tional council to the executive chief; as, on another hand, it is the' 
sole depositary of judicial power in cases of impeachment, and is 
invested with the supreme appellate jurisdiction in all other cases. 



224 THE FEDERALIST. 

The judges again, are so far connected with the legislative de- 
partment, as often to attend and participate in its deliberations, 
though not admitted to a legislative vote. 

From these facts, by which Montesquieu was guided, it may 
clearly be inferred, that in saying, " there can be no hberty, where 
*'the legislative and executive powers are united in the same- per- 
*'son, or body of magistrates ;" or, "if the powers of judging, be 
'' not separated from the legislative and executive powers," he did 
not mean that these departments ought to have uo partial agency 
in, or no control over the acts of each other. His meaning, as his 
own words import, and still more conclusively as illustrated by the 
example in his eye, can amount to no more than this, that where the 
?/;Ao/e power of one department is exercised by the same hands 
which possess the whole power of another department, the funda- 
mental principles of a free constitution are subverted. This would 
have been the case in the constitution examined by him, if the 
king, who is the sole executive magistrate, had possessed also the 
complete legislative power, or the supreme administration of jus- 
tice ; or if the entire legislative body had possessed the supreme 
judiciary, or the supreme executive authority. This, however, is 
not among the vices of that constitution. The magistrate, iii whom 
the whole executive power resides, cannot of himself make a law, 
though he can put a negative on every law ; nor administer jus- 
tice in person, though he has the appointment of those who do 
administer it. The judges can e.xercise no executive prerogative, 
though they are shoots from the executive stock ; nor any legisla- 
tive function, though they may be advised with by the legislative 
councils. The entire legislature can perform no judiciary act; 
though by the joint act of two of its branches,_the judges may be 
removed from their offices ; and though one of its branches is pos- 
sessed of the judicial power in the last resort. The entire legis- 
lature again can exercise no executive prerogative, though one of 
its branches* constitutes the supreme executive magistracy; and 
another, on the impeachment of a third, can try and condemn all 
the subordinate officers in the executive department. 

The reasons on which Montesquieu grounds his maxim, are a 
further demonstration of his meaning, " When the legislative and 
"executive powers are united in the same person or body," says 
he, " there can be no liberty, because apprehensions may arise lest 
"/Ae same monarch or senate should enact tyramiical laws to exe- 
"c//^ethem in a tyrannical manner." Again, "Were the power of 
"judging joined with the legislative, the life and liberty of the sub- 
v"ject would be exposed to arbitrary control, for the jndge would 
" then be the legislator. Were it joined to the executive power, 
•"/Ae jndge might behave with all the violence of an oppressor.^' 
Some of these reasons are more fully explamed in other passages ; 

* The King. 



THE FEDERALIST. 225 

but briefly stated as they are here, they sufficiently establish the 
sneaning which we have pat on this celebrated maxim of this 
celebrated author. 

If we look into the constitutions of the several states, we find, 
that, notwithstanding the emphatical, and in some instances, the 
unqualified terms in which this axiom has been laid down, there 
is not a single instance in which the several departments of pow- 
er have been kept absolutely separate and distinct. New Hamp- 
shire, whose constitution was the last formed, seems to have been 
fully aware of the impossibility a:nd inexpediency of avoiding any 
mixture whatever of these departments ; and has qualified the 
doctrine by declaring, "that the legislative, executive and judi- 
**ciary powers, ought to be kept as separate from, and independ- 
<'ent of each other, as the nature of a free goverrwient will ad- 
*' niit ; or as is consistent taiih that chain of connexion, that 
'■^ binds the whole fabric of the constitntion in one indissoluble 
*' bond of unity and amity.'''' Her constitutioti accordingly mixes 
these departments in several respects. The senate, which is a 
brcfi]ch of the legislative department, is also a judicial tribunal for 
the trial of impeachments. The president, who is the head of 
the executive department, is the presiding member also of the 
senate; and. besides an equal vote in all cases, has a casting vote 
in case of a tie. The executive head is himself eventually elec- 
tive every yoar by the legislative department ; and his council is 
every year chosen by and from the members of the same depart- 
ment. Several of the officers of state are also appointed by the 
legislature. And the members of the judiciary department are 
appointed by the executive department. 

The constitution of Massachusetts has observed a sufficient, 
though less pointed caution, in expressing this fundamental article 
of liberty. It declares, " that the legislative department shall nev- 
^'er exercise the executive and judicial powers, or either of them: 
" the executive shall never exercise the legislative and judicial pow- 
**ers, or either of them : the judicial shall never exercise the legis- 
"lative and executive powers, or either of them." This declara- 
tion corresponds precisely with the doctrine of Montesquieu, as it 
has been explained, and is not in a single point violated by the 
plan of the convention. It goes no farther than to prohibit any 
one of the entire departments iVom exercising the powers of anoth- 
er departrisent. In the very constitutioi] to which it is prefixed, a 
partial mixture of powers has been admitted. TheexectJtive mag- 
istrate has^a qualified negative on the legislative body; and the 
senate, which is a part of the legislature, is a court of impeach- 
ment for members both o( the executive and judiciary departments. 
The members of the judiciary department, again, are appointable- 
by the executive department, and removable by the same authori- 
ty on the address of the two legislative branches. Lastly, a num- 
29 



226 THE FEDERALIST. 

L ber of the officers of government are annually appointed by the 
legislative department. As the appointment to offices,, particularly 
executive gffices. is in its nature an executive function, the com- 
pilers of the constitution have, in this last point at least, violated 
the rule established by themselves. 

I pass over the constitutions of Rhode Island and Connecticut, 
because they were formed prior to the revolution ; and even be- 
fore the principle under examination had become an object of po- 
litical attention. 

The constitution of New York contains no declaration on this 
subject ; but appears very clearly to have been framed with an eye 
to the danger of improperly blending the different departments. 
It gives, nevertheless, to the executive magistrate, a partial control 
over the legislative department; and, what is more, gives a like 
control to the judiciary department ; and even blends the executive 
and judiciary departments in the exercise of this control. In its 
council of appointment, members of the legislative afe associated 
with the executive authority, in the appointment of officers, both 
executive and judiciary. And its court for the trial of impeach- 
ments and correction of errors, is to consist of one branch of the 
legislature and the principal members of the judiciary department. 

The constitution of New J[ersey has blended the differeat powers 
of government more than any of the preceding. The governor, 
who is the executive magistrate, is appointed by the legislature : is 
chancellor and ordinary, or surrogate of the state ; is a member of 
the supreme court of appeals, and president with a casting vote of 
one of the legislative branches. The same legislative branch acts 
again as executive council of the governor, and with him consti- 
tutes the court of appeals. The members of the judiciary depart- 
ment are appointed by the legislative department, and removable 
by one brancj:i of it on the impeachment of the other. \ 

According to the constitution of Pennsylvania,* the president, 
who is head of the executive department, is annually elected by a 
vote in which the legislative department predominates. In con- 
junction with an executive council, he appoints the members of the 
judiciary department, and forms a court of impeachment for trial 
, of all officers, judiciary as well as executive. The judges of the 
supreme court, and justices of the peace seem also to he remova- 
ble by the legislature ; and the executive power of pardoning in 
certain cases to be referred to the same department. Tfie mem- 
bers of the executive council are made ex officio justices of 
peace throughout the state. - * 

In Delaware,* the chief executive magistrate is annually elected 
by the legislative department. The speakers of the two legislative 
branches are vice-presidents in the executive department. The 
executive chief, with six others, appointed, three by each of the 

* The constitutions of these states have been since altered. 



THE FEDERALIST. 227 

liegislative branches, constitute the supreme court of appeals ; he 
is joined with the legislative department in the appointment of 
the other judges. Throughout the states, it appears the members 
of the legislature may at the same time be justices of the peace. 
In this state, the members of one branch of it are ex officio 
justices of the peace ; as are also the members of the executive 
council. The principal officers of the executive department are 
appointed by the legislative ; and one branch of the latter forms 
a court of i-m peach me nts. All officers may be removed on ad- 
dress of the legislature. 

Maryland has adopted the maxim in the most unqualified terms ; 
declaring that the legislative, executive, and judicial powers of gov- 
ernment, ought to be forever separate and distinct from each other. 
Her constitution, notwithstanding, makes the executive magis- 
trate appointable by the legislative department ; and the members 
of the judiciary by the executive department. 

The language of Virginia is still more pointed on this subject. 
Her constitution declares, " that the legislative, executive, and ju- 
" diciary departments, shall be separate and distinct ; so that neither 
"exercise the powers properly belonging to the other ; nor shall any 
" person exercise the powers of more than one of them at the same • 
"time } except that the justices of county courts shall be eligible 
" to either house of assembly." Yet we find not only this express 
exception, with respect to the members of the inferior courts, but 
that the chief magistrate, with his executive council, are appointa- 
ble by the legislature ; that two members of the latter, are trienni- 
ally displaced at the pleasure of the legislature ; and that all the 
principal offices, both executive and judiciary, are filled by the 
same department. The executive prerogative of pardon ing^also, 
is in one case vested in the legislative department. 

The constitution of North Carolina, which declares, " that the 
"legislative, executive, and supreme judicial powers of govern- 
" ment, ought to be forever separate and distinct from each other," 
refers at the same time, to the legislative department, the appoint- 
ment not only of the executive chief, but all the principal officers 
within both that and the judiciary department. 

In South Carolina, the constitution makes the executive mag- 
istracy eligible by the legislative department. It gives to the lat- 
ter, also, the appointment of the members of the judiciary de- 
partment, including even justices of the peace and sheriffs : and 
the appointment of officers in the executive department, down to 
captains in the army and navy of the state. 

In the constitution of Georgia, where it is declared, "that the 
"legislative, executive, and judiciary departments, shall be sepa- 
"rate and distinct, so that neither exercise the powers properly 
"belonging to the other," we find that the executive department 
is to be filled by' appointments of the legislature; and the execu- 



228 THE FEDERALIST. 

tive prerogative of pardoning to be finally exercised by the same 
authority. Even justices of the peace are to be appointed by the 
legislature. 

In citing these cases in which the legislative, executive, and ju- 
diciary departments, have not been kept totally separate and dis- 
tinct, 1 wish not to be regarded as an advocate for the particular 
organizations of the several state governments. I am fully aware, 
that among the many excellent principles which they exemplify, 
they carry strong marks of the haste, and still stronger of the in- 
experience, under which they were framed. It is but too obvious, 
that in some instances, the fundamental principle under considera- 
tion, has been violated by too great a mixture, and even an actual 
consolidation of ihe different powers ; and that in no instance has 
a competent provision been made for maintaining in practice the 
separation delineated on paper. What I have wished lo evince is, 
that the charge brought against the proposed constitution, of vio- 
lating a sacred maxim of free government, is warranted neither 
by the real meaning annexed to that maxim by its author, nor by 
the sense in which it has hitherto been understood in America. 
This interesting subject will be resumed in the ensuing paper. 

PUBLIUS. 



BY JAMES MADISON. 

THE SAME SUBJECT CONTINUED, WITH A VIEW TO THE MEANS OF 
GIVING EFFICACY IN PRACTICE TO THAT MAXIM. 

It was shown in the last paper, that the political apothegm 
there examined, does not require that the legislative, executive, 
and judiciary departments, should* be wholly unconnected with 
each other. I 1 shall undertake in the next place to show, that 
unless these \kpartmen is be so far connected and blended, as to 
give to each a constitutional control over the others, the degree of 
separation which the maxim requires, as essential to a ftee gov- 
ernment, can never in practice be duly maintained. "^ 

It is agreed on all sides, that the powers properly belonging to 
one of the departments ought not to be directly and completely 
administered by either of the other departments. It is equally ev- 
ident, that neither of them ought to possess, directly or indirectly,, 
an overruling influence over the others in the administration of 
their respective powers. It will not be denied, that power is. of 
an encroaching nature, and that it ought to be effectually restrain- 
ed from passing the limits assigned to it. After discriminating, 
therefore, in theory, the several classes of power as they may in 



THE FEDERALIST. 229 

their nature be legislative, executive or judiciary ; the next and 
most difficult task, is to provide some practical security for each, 
against the invasion of the others. What this security ought to 
be, is the great problem to be solved. 

Will it be sufficient to mark, with precision, the boundaries of 
these departments, in the constitution of the government, and to 
trust to these parchment barriers against the encroaching spirit of 
power? This is the security which appears to have been princi- 
pally relied on by the compilers of most of the American consti- 
tutions. But experience assures us, that the efficacy of the pro- 
vision has been greatly overrated ; and that some more adequate 
defence is indispensably necessary for the more feeble, against 
the more powerful members of the government. The legislative / 
department is every where extending the sphere of its activity, 
and drawing all power into its impetuous vortex. ' — ~— 

The founders of our republics have so much merit for the wis- 
dom which they have displayed, that no task can be less pleasing 
than that of pointing out the errors into which they have fallen. 
A respect for truth, however, obliges us to remark, that they seem 
never for a moment to have turned their eyes from the danger to 
liberty, from the overgrown and all-grasping prerogative of an 
hereditary magistrate, supported and fortified by an hereditary 
'\ branch of the legislative authority. Theyseem never to have 
recollected the danger from legislative usurpatiolisT'wTiicTfT^'y'lls^ 
sembling. all power in the same hands, must lead to the same i 
I IZ'^^'-''^^-^^ ^^ threatened by executive, usurpatioiis. 

In a government where numerous and extensive prerogatives 
are placed in the hands of an hereditary monarch, the executive 
department is very justly regarded as the source of danger, and 
watched with all the jealousy which a zeal for liberty ought to 
inspire. In a democracy, where a multitude of people exercise 
in person the legislative functions, and are continually exposed, 
by their incapacity for regular deliberation and concerted meas- 
ures, to the ambitious intrigues of their executive magistrates, 
tyranny may well be apprehended on some favorable emergency, 
to start up in the same quarter. But in a representative republic, 
where the executive magistracy is carefully limited, both in the 
extent and the duration of its power ; and where the legislative 
power is exercised by an assembly, which is inspired by a sup- 
posed influence over the people, with an intrepid confidence in 
its own strength ; which is sufficiently numerous to feel all the 

/passions which actuate a multitude ; yet not so numerous as to^ 
be incapable of pursuing the objects of its passions, by means \ 
which reason prescribes ; it is against the enterprising ambition | 
of this department, that the pjeople ought to indulge all their jeal- / 

ousy, and exhaust all their precautions. "~^ ^..»-,^,.>».v»— —- « 

The legislative department derives a superiority in our govern- 



230 THE FEDERALIST. 

ments from other circumstances. Its constitutional powers being 
at once more extensive, and less susceptible of precise limits, it 
can with the greater facility, mask, under complicated and indi- 
rect measures, the encroachments which it makes on the coordi- 
nate depaitmentS'; It is not unfrequently a question of real nicety 
in legislative bodies, whether the operation of a particular meas- 
ure will, or will not extend beyond the legislative sphere. On the 
other side, the executive power being restrained within a nar'row- 
er compass, and being more simple in its nature ; and the judicia- 
ry being described by landmarks, still less uncertain, projects of 
usurpation by either of these departments would immediately be- 
tray and defeat themselves. Nor is this all : as the legislative de- 
partment a|one has access to the pockets of the people, and has in 
some constitutions lull discretion, and in all a prevailing influence 
over the pecuniary rewards of those who fill the other depart- 
ments; a dependence is thus created in the latter, which gives 
still greater facility to encroachments of the former. 

I have appealed to our own experience for the truth of vv'hat I 
advance on this subject. Were it necessary to verify this experi- 
ence by particular proofs, they might bd multiplied without end. 
I might collect vouchers in abundance from the records aud ar- 
chives of every state in the union. But as a more concise, and at 
the same time equally satisfactory evidence, I will refer to the ex- 
ample of two states, attested by two unexceptionable authorities. 

The first example is that of Virginia, a state which, as we have 
seen, has expressly declared in its constitution, that the three great 
departments ought not to be intermixed. The authority in sup- 
port of it is Mr. Jefferson, vyho, besides his other advantages for 
remarking the operation of the government, was himself the chief 
magistrate of it. In order to convey fully ihe ideas v/ith which 
his experience had impressed him on the subject, it will be neces- 
sary to quote a passage of some length from his very interesting 
'' Notes on the State of Virginia," p. 195. " All the powers of 
" government, legislative, executive and judiciary, result tb the 
" legislative body. The concentrating tliese in the same hands, is 
" precisely the definition of despotic government. It will be no 
" alleviation that these powers will be exercised by a plurality of 
" hands, and not by a single one. One hundred and seventy-three 
" despots would surely be as oppressive as one. Let those who 
'■'• doubt it, turn their eyes on the republic of Venice. As little 
*' will it avail us, that they are chosen by ourselves. An elective 
" despotism was not the government we fought for; but one which 
" should not only be founded on free principles, but in which the 
'■'■ powers of government should be so divided and balanced among 
/' several bodies of magistracy, as that no one could transcend their 
1^' legal limits, without being effectually checked and nistrained by / 
^ the others. For this reason, that convention which passed the 



THE FEDERALIST. 231 

/'^'ot'di nance of government, laid its foundation on this basis, that 
"the legislative, executive, and judiciary departments, sliouid be 
''separate and distinct, so that no person should exercise the pow- 
*'ers of more than one of them at the same time. But no barrier ^^' 
^^ was provided betioeen these several powers. The judiciary and 
"executive members were left dependent on the legislative for 
"their subsistence in office, and some of them for their continu- 
"ance in it. If therefore, the legislature assumes executive and 
"judiciary powers, no opposition is likely to be made ; nor, if 
"made can be effectual ; because in that case, they may put their 
"proceedings into the form of an act of assembly, which will 
"re(]der them obligatory on the other branches. They liave^ 
"accordingly, in many instances, decided 7'ights, which should f 
" have been left to judiciary controversy ; and the direction of J 
''•the executive, daring the whole time of their session, iis becomj- 
^'■ing habitual and Jamiliary 

The other state, which I shall take for an exalmple, is Pennsyl- 
vania; and the other authority, the council of censors which as- 
sembled in the years 1783 and 1784. A part of the duty of this 
body, as marked out by the constitution, was " to inquire, whether 
"the constitution had been preserved inviolate in every part : and 
" whether the legislative and executive branches of government 
"had performed their duty as guardians of the people, or assiuiied 
"to themselves, or exercised other or greater powers than they 
"are entitled to by the constitution." in the execution of this 
trust, the council were necessarily led to a comparison of both the 
legislative and executive proceedings, with the constitutional 
powers of these departments : and from the facts enumerated, 
and to the truth of most of which both sides in the council sub- 
scribed, it appears, that the constitution had been flagrantly viola- ^ 
ted by the legislature in a variety of important instances. 

A great number of laws had been passed, violating, without 
any apparent necessity, the rule requiring that all bills of a public 
nature shall be previously printed for the consideration of the peo- 
ple ; although this is one of the precautions chiefly relied on by 
the constitution against improper acts of the legislature. 

The constitutional trial by jury had been violated; and powers 
assumed, which had not been delegated by the constitution. 

Executive powers had been usurped. 

The salaries of the judges, which the constitution expressly 
requires to be fixed, had been occasionally varied ; and cases be- 
longing to the judiciary department frequently drawn within legis- 
lative cognizance and determination. 

Those who wish to see the several particulars falling under each 
of these heads, may consult the journals of the council, which are 
in print. Some of them, it will be found, may be imputable to 
peculiar circumstances connected with the war : but the greater 



232 THE FEDERALIST. 

part of them may be considered as the spontaneous shoots of an 
ill-constituted government. 

It appears, also, that the executive department had not been in- 
nocent of frequent breaches of the constitution. There are three 
observations, however, which ought to be made on this head : 
Firsts A great proportion of the instances were either immediate- 
ly produced by the necessities of the war, or recommended by 
congress, or the commander in chief: Second, In most of the 
other instances, they conformed either to the declared or the 
known sentiments of the legislative department ; Tliird, The 
executive department of Pennsylvania is distinguished from that 
of the other states, by the number of members composing it. In 
this respect, it has as much affinity to a legislative assembly, as 
to an executive council. And being at once exempt from the re- 
straint of.an individual responsibi'ity for the acts of the body, and 
deriving confidence from mutual example and joint influence ; 
unauthorized measures would of course be more Ireely hazarded, 
than where the executive department is admii}istered by a single 
hand, or by a few hands. 

The conclusion which I am warranted in drawing from these 
observations is, that a mere demarkation on parchment of the con- 
stitutional limits of the several departments, is not a sufficient' 
guard against those encroachments which lead to a tyrannical con- 
centration of all the powers of government in the same hands. 

PUBLIUS. 



BY JAMES MADISON. 
THE SAME SUBJECT CONTINUED WITH THE SAME VIEW. 

The author of the "Notes on the State of Virginia," quoted in 
the last paper, has subjoined to that valuable work the draught of 
a constitution, which had been prepared in order to be laid before 
a convention expected to be called in 1783, by the legislature, for 
the establishment of a constitution for that commonwealth. The 
plan, like every thing from the same pen, marks a turn of 'thinkitjg 
original, comprehensive, arid accurate ; and is the more worthy of 
attention as it equally displays a fervent attachment to republican 
government, and an enlightened view of the dangerous propensi- 
ties against which it ought to be guarded. One of the precautions 
which he proposes, and on which he appears ultimately to rely as 
a palladium to the weaker departments of power, against the in- 
vasions of the stronger, is perhaps altogether his own, and as it 



THE FEDERALIST. 233 

immediately relates to the subject of our present inquiry, ought 
not to be overlooked. 

His proposition is,- " that whenever any two of the three branchf- 
" es of government shall concur in opinion, each by the voices of 
" two thirds of their whole number, that a convention is necessary 
" for altering the constitution, or correcting breaches of it, a con- 
" vention shall be called for the purpose." 

As the people are the only legitimate fountain of power, and it is 
from them that the constitutional charter, under which the several 
branches of government hold their power, is derived ; it seems 
strictly consonant to the republican theory, to recur to the same 
original authority, not only whenever it may be necessary to enlarge, 
diminish, or new-model the powers of government ; but also when- 
ever any one of the departments may commit encroachments on 
the chartered authorities of the others. The several departments 
being perfectly coordinate by the terms of their common commis- 
sion, neither of them, it is evident, can pretend to an exclusive or su- 
^ perior right of settling the boundaries between their respective pow- 
ers : and how are the encroachments of the stronger to be prevent- 
' ed, or the wrongs of the weaker to be redressed, without an ap- 
peal to the people themselves, who, as the grantors of the commis- 
sion, can alone declare its true meaning, and enforce its observance ? 

There is certainly great force in this reasoning, and it must be 
allowed to prove, that a constitutional road to the decision of the 
people ought to be marked out and kept open, for certain great 
and extraordinary occasions. But there appear to be insuperable 
objections against the proposed recurrence to the people, as a pro- 
vision in all cases for keeping the several departments of power 
within their constitutional limits. 

In the first place, the provision does not reach the case of a 
combination of two of the departments against a third. If the 
legislative authority, which possesses so many means of operating 
on the motives of the other departments, should be able to gain to 
its interest either of the others, or even one third of its members, 
the remaining department could derive no advantage from its re- 
medial provision. I do not dwell, however, on this objection, 
because it may be thought to lie rather against the modification 
of the principle, than against the principle itself. 

In the next place, it may be considered as an objection inherent 
in the principle, that as every appeal to the people would carry an 
implication of some defect in the government, frequent appeals 
would, in a great measure, deprive the government of that venera- 
tion which time bestows on every thing, and without which per- 
haps the wisest and freest governments would not possess the re- 
quisite stability. If it be true that all governments rest on opin- 
ion, it is no less true, that the strength of opinion in each individ- 
ual, and its practical influence on his conduct, depend much on 
30 



234 THE FEDERALIST. 

the number which he supposes to have entertained the same opin- 
ion. The reason of man, like man himself, is timid and cautious 
when left alone ; and acquires firmness and confidence, in propor- 
tion to the number with which it is associated. When the ex- 
amples which fortify opinion are ancient, as well as mimerous, 
they are known to have a double effect. In a nation of philoso- 
phers, this consideration ought to be disregarded. A reverence 
for the laws would be sufficiently inculcated by the voice of an 
enlightened reason. But a nation of philosophers is as little to 
be expected, as the philosophical race of kings wished for by 
Plato. And in every other nation, the most rational government 
will not find it a superfluous advantage to have the prejudices of 
the community on its side. 

The danger of disturbing the public tranquillity, by interesting 
too strongly the public passions, is a still more serious objection 
against a frequent reference of constitutional questions to the de- 
cision of the whole society. Notwithstanding the success which 
has attended the revisions of our established forms of governmeut, 
and, which does so much honor to the virtue and intelligence of the 
people of America, it must be confessed, that the experiments are 
of too ticklish a nature to be unnecessarily multiplied. We are 
to recollect, that all the existing constitutions were formed in the 
midst of a danger which repressed the passions most unfriendly to 
order and concord ; of an enthusiastic confidence of the people in 
their patriotic leaders, which stifled the ordinary diversity of opin- 
ions on great national questions; of a universal ardor for new and 
opposite forms, produced by a universal resentment and indignation 
against the ancient government ; and whilst no spirit of party, con- 
nected with the changes to be made, or the abuses to be reformed, 
could mingle its leaven in the operation. The future situations in 
which we must expect to be usually placed, do not present any 
equivalent security against the danger which is apprehended. 

But the greatest objection of all is, that the decisions which 
would probably result from such appeals, would not answer the 
purpose of maintaining the constitutional equilibrium of the gov- 
ernment. We have seen that the tendency of republican govern- 
ments is, to an aggrandizement of the legislative, at the expense of 
the other departments. The appeals to the people, therefore^ 
would usually be made by the executive and judiciary depart- 
ments. But whether made by one side or the other, would each 
side enjoy equal advantages on the trial ? Let us view their differ- 
ent situations. The members of the executive and judiciary de- 
partments are few in number, and can be personally known to a 
small part only of the people. The latter, by the mode of their 
appointment, as well as by the nature and permanency of it, are 
too far removed from the people to share much in their preposses- 
sions. The former are generally the objects of jealousy ; and their 



THE FEDERALIST. ^ 235 

administration is always liable to be discolored and rendered nn- 
popular. The members of the legislative department on the other 
hand, are numerons. They are distributed and dwell among the 
people at large. Their connections of blood, of friendship, and^ of 
.acquaintance, embrace a great proportion of the most influential 
part of the society. The nature of their public trust implies a 
personal influence among the people, and that they Are more im- 
mediately the confidential guardians of their rights and liberties. 
With these advantages, it can hardly be supposed, that the ad- 
verse party would have an equal chance for a favorable issue. 

But the legislative party would not only be able to plead their 
cause most successfully with the people : they would probably be 
constituted themselves the judges. The same influence which 
had gained them an election into the legislature, would gain them 
a seat in the convention. If this should not be the case with all, 
it would probably be the case with many, and pretty certainly 
with those leading characters, on whom every thing depends in 
such bodies. The convention, in short, would be composed 
chiefly of men wh9 had been, who actually were, or who expect- 
ed to be members of the department whose conduct was arraign- 
ed. They would consequently be parties to the very question 
to be decided by them. 

It might, however, sometimes happen, that appeals would be 
made under circumstances less adverse to the executive and judi- 
ciary departments. The usurpations of the legislature might be 
so flagrant and so sudden, as to admit of no specious coloring. A 
strong party among themselves might take side with the other 
branches. The executive power might be in the hands of a pecu- 
liar favorite of the people. In such a posture of things, the pub- 
lic decision might be less swayed by prepossessions in favor of the 
legislative party. But still it could never be expected to turn on 
the true merits of the question. It would inevitably be connected 
with the spirit of preexisting parties, or of parties springing out of 
the question itself. It would be connected with persons of dis- 
tinguished character, and extensive influence in the community. 
It would be pronounced by the very men who had been agents in, 
or opponents of the measures, to which the decision would relate. 
The passions, therefore, not the reason, of the public, would sit 
in judgment. But it is the reason of the public alone, that ought 
to control .and regulate the government. The passions ought to 
be controlled and regulated by the government. 

We found in the last paper, that mere declarations in the writ- 
ten constitution, are not sufficient to restrain the several depart- 
ments within their legal limits. It appears in this, that occasional 
appeals to the people would be neither a proper, nor an effectual 
provision for that purpose. How far the provisions of a different 
nature contained in the plan above quoted, might be adequate, 1 



236' THE FEDERALIST. 

do not examine. Some of them are unquestionably founded on 
sound political principles, and all of them are framed with singu- 
lar ingenuity and precision. PUBLIUS-. 



BY JAMES MADISON. 



THE SAME SUBJECT CONTINUED, WITH THE SAME VIEW. 

It may be contended, perhaps, that instead of occasional ap- 
peals to the people, which are liable to the objections urged against 
them, periodical appeals are the proper and adequate means of 
preventing and correcting infractions of the constitution. 

It will be attended to, that in the examination of these expedi- 
ents, I confine myself to their aptitude for enforcing tho constitu- 
tion, by keeping the several departments of power within their 
due bounds ; without particularly considering them as provisions for 
altering the constitution itself. In the first view, appeals to the 
people at fixed periods, appear to be nearly as ineligible, as appeals 
on particular occasions as they emerge. If the periods be separated 
by short intervals, the measures to be reviewed and rectified, will 
have been of recent date, and will be connected with all the cir- 
cumstances which tend to vitiate and pervert the result of occa- 
sional revisions. If the periods be distant from each other, the 
same remark will be applicable to all recent measures ; and in pro- 
portion as the remoteness of the others may favor a dispassionate 
review of them, this advantage is inseparable from inconvenien- 
ces which seem to counterbalance it. In the Jirst place, a distinct 
prospect of public censure would be a very feeble restraint on 
power from those excesses, to which it might be urged by the 
force of present motives. Is it to be imagined, that a legislative 
assembly, consisting of a hundred or two hundred members, 
eagerly bent on some favorite object, and breaking through the 
restraints of the constitution in pursuit of it, would be arrested 
in their career, by considerations drawn from a censorial revision 
of their conduct at the future distance of ten, fifteen or twenty 
years ? In the next place, the abuses would often have complet- 
ed their mischievous effects before the remedial provision would 
be applied. And in the last place, where ^this might not be the 
case, they would be of long standing, would have taken deep 
root, and would not easily be extirpated. 

The scheme of revising the constitution, in order to correct re- 
cent breaches of it, as well as for other purposes, has been actually 
tried in one of the states. One of the objects of the council of 



THE FEDERALIST. ' 237 

censors which met in Pennsylvania, in 1 783 and 1784, was, as 
we have seen, to inquire, " whether the constitution had been 
" violated ; and whether the legislative and executive departments 
"had encroached on each other," This important and novel ex- 
periment in politics merits, in several points of view, very particu- 
lar attention. In some of them it may perhaps, as a single ex- 
periment, made under circumstances somewhat peculiar, be thought 
to be not absolutely conclusive. But as applied to the case under 
consideration, it involves some facts, which I venture to remark, 
as a complete and satisfactory illustration of the reasoning which 
I have employed. 

First. It appears, from the names of the gentlemen who com- 
posed the council, that some, at least, of its most active and lead- 
ing members, had also been active and leading characters in the 
parties which preexisted in the state. 

Second. It appears, that the same active and leading members 
of the council, had been active and influential members of the leg- 
islative and executive branches, within the period to be reviewed ; 
and even patrons or opponents of the very measures to be thus 
brought to the test of the constitution. Two of the members had 
been vice-presidents of the state, and several others members of 
the executive council, within the seven preceding years. One of 
them had been speaker, and a number of others distinguished 
members of the legislative assembly, within the same period. 

Third. Every page of their proceedings witnesses the effect 
of all these circumstances on the temper of their deliberations. 
Throughout the continuance of the council, it was split into two 
fixed and violent parties. The fact is acknowledged and lamented 
by themselves. Had this not been the case, the face of their pro- 
ceedings exhibit a proof equally satisfactory. In all questions, 
however unimportant in themselves, or unconnected with each oth- ^ 
I er, the same names stand invariably contrasted on the opposite ■" 
columns. Every unbiassed observer may infer, without danger of 
mistake, and at the same time without meaning to reflect on either 
party, or any individuals of either party, that unfortunatelj'' passion, 
not reason, must have presided over their decisions. When men 
exercise their reason coolly and freely on a variety of distinct 
questions, they inevitably fall into different opinions on some of 
them. When they are governed by a common passion, their opin- 
ions, if they are so to be called, will be the same. 

Fourth. It is at least problematical, whether the decisions of 
this body do not, in several instances, misconstrue the limits pre- 
scribed for the legislative and executive departments, instead of re- 
ducing and limiting them within their constitutional places. 

Fifth. I have never understood that the decisions of the coun- 
cil on constitutional questions, whether rightly or erroneously form- 
ed, have had any effect in varying the practice founded on legisla- 



238 THE FEDERALIST. 

tive constructions. It even appears, if I mistake not, that in one 
instance, the cotetnporary legislature denied the constructions of 
the council, and actually prevailed in the contest. 

This censorial body, therefore, proves at the same time, by its 
researches, the existence of the disease ; and by its example, the 
inefRcacy of the remedy. 

This conclusion cannot be invalidated by alleging that thestate 
in which the experiment was made, was at that crisis, and had been 
for a long time before, violently heated and distracted by the rage 
of party. Is it to be presumed, that at any future septennial 
epoch, the same state will be free from parties? Is it to be pre- 
sumed that any other state, at the same or any other given period, 
will be exempt from them ? Such an event ought to be neither 
presumed nor desired ; because an extinction of parties necessa- 
rily implies either a universal alarm for the public safety, or an 
absolute extinction of liberty. 

Were the precaution taken of excluding from the assemblies 
elected by the people, to revise the preceding administration of the 
government, all persons who should have been concerned in the 
government within the given period, the difficulties would not be 
obviated. The important task would probably devolve on men, 
who, with inferior capacities, would in other respects be little bet- 
ter qualified. Although they might not have been personally con- 
cerned in the administration, and therefore not immediately agents 
in the measures to be examined ; they would probably have been 
involved in the parties connected with these measures, and have 
been elected under their auspices. PUBLIUS. 



BY JAMES MADISON. 



THE SAME SUBJECT CONTINUED, WITH THE SAME VIEW, AND CON- 
CLUDED. 

To what expedient, then, shall we finally resort, for maintain- 
ing in practice the necessary partition of power among the seve- 
ral departments, as laid down in the constitution ? The only 
answer that can be given is, that as all these exterior provisions 
are found to be inadequate, the defect must be supplied, by so con- 
triving the interior structure of the government, as that its seve- 
ral constituent parts may, by their mutual relations, be the means 
of keeping each other in their proper places. Without presuming 
to undertake a full development of this important idea, I will hazard 
a few general observations, which may perhaps place it in a clear- 



THE FEDERALIST. 239 

yr Jight, and enable ns to form a more correct judgment of the prin- 
ciples and striictnre of the government planned by the convention. 

In o'rder to lay a due foundation for that separate and distinct 
exercise of the different powers of government, which to a certain 
extent is admitted on all hands to be essential to the preservation 
of liberty, it is evident that each department should have a will of 
its own ; and consequently should be so constituted, that the mem- 
bers of each should have as little agency as possible in the appoint- 
ment of the members of the others. Were this principle rigorous- 
ly adhered to, it would require that all the appointments for the 
supreme executive, legislative, and judiciary magistracies, should 
be drawn from the same fountain of authority, the people, through 
chaiuiels having no communication whatever with one another. 
Perhaps such a plan of constructing the several departments, would 
be less difficult in practice, than it may in contemplation appear. 
Some difficulties, however, and some additional expense would 
attend the execution of it. Some deviations, therefore, from the 
principle must be admitted. In the constitution of the judiciary 
department in particular, it might be inexpe<lient to insist rigor- 
ously on the principle : first, because peculiar qualifications being 
essential in the members, the primary consideration ought to be 
to select that mode of choice which best secures these qualifica- 
tions ; secondly, because *he permanent tenure by which the ap 
pointments are held in that department, must soon destroy al 
sense of dependence on the authority conferring them. 

It is equally evident, that the members of each department 
should be as little dependent as possible on those of the others, for 
the emoluments annexed to their offices. Were the executive mag- 
istrate, or the judges, not independent of the legislature in this par- 
ticular, their independence in every other would be merely nominal. 

But the great security against a gradual concentration of the 
several powers in the same department, consists in giving to those 
who administer each department the necessary constitutional 
means, and personal motives, to resist encroachments of the 
others. The provision for defence must in this, as in all other 
cases, be made commensurate to the danger of attack. Ambition 
must be made to counteract ambition. The interest of the man, 
must be connected with the constitutional rights of the place. 
It may be a reflection on human nature, that such devices should 
be necessary to control the abuses of government. But what is 
government itself, but the greatest of all reflections on human 
nature ? If men were angels, no government would be necessa- 
ry. If angels were to govern men, neither external nor internal 
controls on government would be necessary. In framing a gov- 
ernment which is to be administered by men over men, the great 
difficulty lies in this ; you must first enable the government to 
control the governed ; and in the next place oblige it to control 



240 THE FEDERALIST.. 

itself. A dependence on the people is, no doubt, the primary 
control on the government ; but experience has taught mankind 
the necessity of auxiliary precautions. 

This policy of supplying, by opposite and rival interests, the 
defect of better motives, might be traced through the whole sys- 
tem of human affairs, private as well as public. We see it par- 
ticularly displayed in all the subordinate distributions of power; 
where the constant aim is, to divide and arrange the several offi- 
ces in such a manner as that each may be a check on the other; 
that the private interests of every individual may be a sentinel 
over the public rights. These inventions of prudence cannot be less 
requisite in the distribution of the supreme powers of the state. 

But it is not possible to give to each department an equal power 
of self-defence. In republican government, the legislative author- 
ity necessarily predominates. The remedy for this inconveniency 
is, to divide the legislature into different branches ; and to render 
them, by different modes of election, and different principles of 
action, as little connected with each other, as the nature of their 
common functions, and their common dependence on the society, 
will admit. ^It may even be necessary to guard against dangerous 
encroachments by still further precautions. As the weight of the 
legislative authority requires that it should be thus divided, the 
weakness of the executive may require oi the other hand, that it 
should be fortified. An absolute negative on the legislature, ap- 
pears, at first view, to be the natural defence With which the exec- 
utive magistrate 'should be armed. But perhaps it would be nei- 
ther altogether safe, nor alone sufficient. On ordinary occasions, 
it might not be exerted with the requisite firmness ; and on extra- 
ordinary occasions, it might be perfidiously abused. May not this 
defect of an absolute negative be supplied by some qualified con- 
nection between this weaker department, and the weaker branch 
of the stronger .department, by which the latter may be led to 
support the constitutional rights of the former, without being too 
much detached from the rights of its own department ? 

If the princi]>les on which these observations are founded be 
just, as I persuade myself they are, and they be applied as a cri- 
terion to the several state constitutions, and to the federal consti- 
tution, it will be found, that if the latter does not perfectly cor- 
respond with them, the former are infinitely less able to bear such 
a test. 

There are moreover two considerations particularly applicable 
to the federal system of America, which place that system in a 
very interesting point of view. 

First. In a single republic, all the power surrendered by the 
people, is submitted to the administration of a single government : 
and the usurpations are guarded against, by a division of the gov- 
ernment into distinct and separate departments. In the compound 



THE FEDERALIST. 241 

republic of America, the power surrendered by the people, is first 
divided between two distinct governments, and then the portion 
allotted to each subdivided among each and separate departments. 
Hetjce a double security arises to the rights of the people. The 
different governments will control cacli other ; at the same lime 
that each will be controlled by itself. 

SecQfid. It is of great importance in a republic, not only to 
guard the society against the oppression of its rulers ; but to guard 
one part of the society against the injustice of the other part. 
Different interests necessarily exist in different classes of citizens. 
If a majority be united by a common interest, the rights of the 
minority will be insecure. There are but two methods of provid- 
ing against this evil ; the ona by creating a will in the communi- 
ty independent of the majority, that is, of the society itself ; the 
other by comprehending in the society so many separate descrip- 
tions of citizens, as v/ill render an unjust combination of a major- 
ity of the wlrole very improbable, if tiot impracticable. The first 
method prevails in all governments possessing an hereditary or 
self-api^ointed authority. This, at best, is but a precarious secu- 
rity ,• because a power independent of the society may as well es- 
pouse the unjust views of the major, as the rightful interests of 
ihe minor party, and may possibly be turned against both parties. 
The second method will be exemplified in the federal republic of 
the United States. Whilst all authority in it will be derived from 
and dependent on the society, the society itself will be broken in- 
to so many parts, interests, and classes of citizens, that the rights 
of individuals, or of the minority, will be in little danger from in- 
terested combinations of the majority. In a free government, the 
security for civil rights must be the same as that for religious 
rights, ft consists in the one ca.'^e in the multiplicity of interests, 
and in the other in the multiplicity of sects. 

The degree of security in both cases will depend on the number 
of interests and sects ; and this may be presumed to depend on the 
extent of country and number of people comprehended under the 
same government. This view of the subject must particularly re- 
commend a proper federal system to all the sincere and considerate 
friends of republican government : since it shows, that in exact 
proportion as the territory of the union may be fortued into more 
circumscribed confederacies, or states, oppressive combinations of 
a majority will be facilitated ; the best security under the republi- 
can form, for the rights of every class of citizens, will be dimin- 
jshed ; and consequently, the stability and independence of some 
member of the govertutjent, the only other security, must be pro- 
portionally increased. Justice is the end of government. It is 
the end of civil society. It ever has been, and ever will be pur- 
sued, until it be obtained, or until liberty be lost in the pursuit. 
In a society, under the forms of which the stronger faction can 
31 



242 THE FEDERALIST. 

readily unite and oppress the weaker, anarchy may as truly be said 
to reign, as in a state of nature, where the weaker individual is not 
secured against the violeuce of the stronger : and as in the latter 
state, even the stronger individuals are prompted, by the uncertain- 
ty of their condition, to submit to a government which may pro- 
tect the weak, as well as themselves : so in the former state, will 
the more powerful factions or parties be gradually induced, by a 
like motive, to wish for a government which will protect all parties,' 
the weaker as well as the more powerful. It can be little doubted, 
that if the state of Rhode Island was separated from the confed- 
eracy, and left to itself, the insecurity of rights under the popular 
form of government within such narrow limits, would be displayed 
by such reiterated oppressions of factious majorities, that some 
power altogether independent of the people, would soon be called 
for by the voice of the very factions whose misrule had proved the 
necessity of it. In the extended republic of the United States, 
and among the great variety of interests, parties, and sects, which 
it embraces, a coalition of a majority of the whole society could 
eeldom take place upon any other principles than those of justice 
and the general good : whilst there being thus less danger to a mi- 
nor from the^viU of a major party, there must be less pretext also, 
to provide for the security of the fornfer, by introducing into the 
government a will not dependent on the latter : or, in other words, 
a will independent of the society itself. It is no less certain than 
•it is important, notwithstanding the contrary opinions which have 
'been entertained, that the larger the society, provided it lie within 
a practical sphere, the more duly capable it will be of self-govern- 
ment. And happily for the republican cause, the practicable 
•sphere may be carried to a very great extent, by a judicious mod- 
ification and mixture of the federal principle. 

PUBLIUS. 



BY JAMES MADISON, 



CONCERNING THE HOUSE OP EEPRESENTATITES, WITH A VIEW TO THK 
QUALIFICATIONS OF THE ELECTORS AND ELECTED, AND THE TERM 
OF SERVICE OF THE MEMBERS. 

From the more general inquiries pursued in the four last papers, 
I pass on to a more particular examination of the several parts of 
the government. I shall begin with the house of representatives. 

The first view to be taken of this part of the government, re* 
lates to the qwall-ifications of the electors and the elected. 



THE FEDERALIST. 243 

Those of the former are 1o be the same with those of the elec- 
tors of the most nnmeroos branch of the state legislatures. The 
definition of the right of suffrage is very justly regarded as a fun- 
dameiJtal article of republican goverimient. It was incumbent on 
the convention, therefore, to define and establish this right in the 
constitution. To have left it open for the occasional regulation of 
the congress, would have been improper for the reason just men- 
tioned. To have submitted it to the legislative discretion of the 
states, would have been improper for the same reason ; and for the 
additional reason, that it would have rendered too dependent on 
the state governments, that branch of the federal government which 
ought to be dependent on the people alone. To have reduced the 
different qualifications in the different states to one uniform rule, 
would probably have been as dissatisfactory to some of the states, 
<'is it would have been diflicult to the convention. The provision 
made by the convention appears, therefore, to be the best that lay 
MHthin their option. It must be satisfactory to every state ; be- 
cause it is conformable to the standard already established, or which 
may be established by the state itself Ii will be safe to the Uni- 
ted States ; because, being fixed by the state constitutions, it is 
not alterable by the state governments, and it cannot be feared 
that the people of the states will alter this part of their constitu- 
tions, in such a manner as to abridge the rights secured to thetn 
by the federal constitution. 

The qualifications of the elected, being less carefully and prop- 
erly defined by the state constitutions, and being at the same time 
more susceptible of uniformity, have been very properly considered 
and regulated by the convention. A representative of the. United 
States must be of the age of twenty-five years; must have been 
seven years a citizen of the United States; must, at the time of 
Ins election, be an inhabitant of the state he is to represent, and, 
during the time of his service, must be in no office under the United 
States. Under these reasonable limitations, the door of this part of 
the federal government is open to merit of every description, wheth- 
er native or adoptive, whether young or old, and without regard to 
poverty or wealth, or to any particular profession of religious faith. 

The term for which the representatives are to be elected, falls 
under a second view which may be taken of this branch. In order 
to decide on the propriety of this article, two questions must be 
considered ; first, whether biennial elections will, in this case, be 
safe ; secondly, vvdiether they be necessary or useful. 

First. As it is essential lo liberty, that the government in geii-i 
eral should have a common interest with the people ; so it is partic- 
ularly essential, that the branch of it under consideration should 
have an immediate dependence on, and an intimate sym[iathy with I 
the people. Frequent elections are unquestionably the only policy,! 
by which this dependence and sympathy can be effectually secured. ] 



244 THE FEDERALIST. 

Bat wliat particiiler degree of frequency may be absolutely neces- 
sary for the purpose, does not appear to be susceptible of any pre- 
cise calculation, and must depend on a variety of circumstances with 
which it may be connected. Let us consult experience, the guide 
that ought always to be followed, whenever it can be found. 

The scheme of representation, as a substitute for a meeting of 
the citizens in person, being at most but very imperfectly known to 
ancient polity ; it is in more modern times only, that we are to ex- 
pect instructive examples. And even here, in order to avoid a re- 
search too vague and diffusive, it will be proper to confine ourselves 
to the few examples which are best known, and which bear the 
greatest analogy to our particular case. The first to wliicli this 
character ought to be applied, is the house of commons in Great 
Britain. The history of this branch of the English constitution, 
anterior to the date of Magna C'harta, is too obscure to yield in- 
struction. The very existence of it has been made a question 
among political antiquaries. The earliest records of subsequent 
date prove, that parliaments were to sit only every year ; not that 
they .were to be elected every year. ■ And even these annual ses- 
sions were left so much at the discretion of the monarch, that un- 
der various pretexts, very long and dangerous intermissions were 
often contrived by royal ambition. To remedy this grievance, it 
was provided by a statute in the reign of Charles IL, that the inter- 
missions should not be protracted beyond a period of three years. 
On the accession of William III., when a revolution took place in the 
government, the subject was still more seriously resumed, and it 
was declared to be among the fundamental rights of the people, that 
parliaments ought to be held frequently. By another statute, 
which passed a ^e\Y years later in the same reign, the term, "fre- 
quently" which had alluded to the triennial period settled in the 
time of Charles 11., is reduced to a precise meaning, it being ex- 
pressly enacted, that a new parliament shall be called within 
three ^^ears after the determination of the former. The last 
change, from three to seven years, is well known to have been 
introduced pretty early in the present century, under an alarm 
for the Hanoverian succession. From these facts it appears, 
that the greatest frequency of elections which has been deemed 
necessary in that kingdom, for bindiiig the representatives to 
their constituents, does not exceed a triennial return of them. 
And if we may argue from the degree of liberty retained, even 
under septennial elections, and all the other vicious ingredients m 
the parliamentary constitution, we cannot doubt that a reduction 
of the period from seven to three years, with other necessary re- 
forms, would so far extend the influence of the people over their 
representatives as to satisfy us, that biennial elections, under 
the federal system, cannot possibly be dangerous to the requisite 
dependence of the house of representatives on their constituents. 



THE FEDERALIST. 245 

Elections in Ireland, till of late, were regulated entirely by the 
dis3retion of the crown, and were seldom repeated, except on the 
accession of a new prince, or some other contingent event. The 
parliament which commenced with George II. was continued 
throughout his whole reign, a period of about thirty-five years. 
T[\e only dependence of ihe representatives on the people consist- 
ed°in the right of the latter to supply occasional vacancies, by the 
election of new members, and in the chance of some event Vi'hich 
might produce a general new election. The abihty also of the Irish 
parliament to maintain the rights of their constituents, so far as the 
disposition might exist, was extremely shackled by the control of 
the crown over the subjects of their dehberation. Of late, these 
shackles, if I mistake not, have been broken ; and octennial parlia- 
ments have besides been established. What effect may be pro- 
duced by this partial reform, must be left to further experience. 
The example of Ireland, from this view of it, can throw but little 
light on the subject. As far as we can draw any conclusion from 
it, it must be that if the people of that country have been able 
under all these disadvantages, to retain any liberty whatever, the 
advantage of biennial elections would secure to them every de- 
gree of liberty, which might depend on a due cotmexion between 
their I'epresentatives and themselves. 

Let us bring our inquiries nearer home. The examples of these 
states, when British colonies, claims particular , attention ; at the 
same time that it is so well known as to require little to be said on 
it. The principle of representation, in one branch of the legisla- 
ture at least, was established in all of them. But the periods of 
election were different. They varied from one to seven years. 
Have we any reason to infer from the spirit and conduct of the 
representatives of the people, prior to the revolution, that bieimial 
elections would have been dangerous to the public liberties? The 
spirit which everywhere displayed itself, at the commencement of 
the struggle, and vi^hich vanquished the obstacles to independence, 
is the best of proofs, that a sufficient portion of liberty had been 
everywhere enjoyed, to inspire both a sense of its worth and a zeal 
for its proper enlargemen-t. This remark holds good, as well with 
regard to the then colonies, whose elections were least frequent, 
as to those whose elections were most frequent. Virginia was the 
colony which stood first in resisting the parliamentary usurpations 
of Great Britain : it was the first also in espousing, by public act, 
the resolution of independence. In Virginia, nevertheless, if I 
have not been misinformed, elections under the former government 
were septennial. This particular example is brought into view, 
not as a proof of any peculiar merit, for the priority in those in- 
stances was probably accidental ; and still less of any advantage 
in septetmial elections, for when compared with a greater fre- 
quency they are inadmissible; but merely as a proof, and I con- 



246 THE FEDERALIST. 

ceive it to be a very substantial proof, that the Hberties of the 
people can be in do danger from biennial elections. 

The concUision resulting from these exanriples will be not a little 
strengthened, by recollecting three circnrnstances. The first is, 
that the federal legislature will possess a part only of that supreme 
legislative authority which is vested completely in the British par- 
liament ; and which, with a few exceptions, was exercised by the 
colonial assemblies, and the Irish legislature. It is a received and 
well-founded rnaxirn, that where no other circumstances atfect the 
case, the greater the power is, the shorter ought to be its duration ; 
and conversely, the smaller the power, the more safely may its du- 
ration be protracted. In the second place, it has, on another oc- 
casion, been shown, that the federal legislature will not only be re- 
strained by its dependence on the people as other legislative bodies 
are ; but that it will be moreover watched and controlled by the sev- 
eral collateral legislatures, which other legislative bodies are not. 
And in the third place, no comparison can be made between the 
means that will be possessed by the more permanent branches of 
the federal government, for seducing, if they should be disposed 
to seduce, the house of representatives from their duty to the 
people; and the means of influence over the popular branch, pos- 
essed by the other branches of the government above cited. With 
less power, therefore, to abuse, the federal representatives can be 
less tempted on one side, and will be doubly watched on the 
other. , PLTBLIUS. 



BY JAMES MADISON. 



THE SAME SUBJECT CONTINUED, WITH A VIEW OF THE TERM OP 
SERVICE OF THE MEMBERS. 

I SHALL here, perhaps, be reminded of a current observation, 
" that -where annual elections end, tyranny begins." If it be true, 
as has often been remarked, that sayings which become proverbial, 
are generally founded in reason, it is not less true, that when once 
established, they are often applied to cases to which the reason of 
them does not extend. I need not look for a proof beyond the 
case before ns. What is the reason on which this proverbial ob- 
servation is founded? No man will subject himself to the ridicule 
of pretending thatany natural connexion subsists between the sun 
or the seasons, and the period within which human virtue can bear 
the temptations of power. Happily for mankind, liberty is not, in 
this respect, confined to any single point of time ; but lies within 



THE FEDERALIST. 247 

^ extremes, viMiich afford sufficient latitude for all the variations 
which may be required by the various situations and circumstan- 
ces of civil society. 

The election of magistrates might be, if it were found expedi- 
ent, as in some instances it actually has been, daily, weekly, or 
monthly, as well as annual ; and if circumstances may require 
a deviation from the rule on one side, why not also on the other 
side? Turning our attention to the periods established among 
ourselves, for the election of the most numerous branches of the 
state legislatures, we find them by no means coinciding any more 
in this instance, than in the elections of other civil magistrates. 
In Connecticut and Rhode Island, the periods are half-yearly. In 
the other states, South Carolina excepted, they are annual. In 
South Carolina they are biennial ; as is proposed in the federal 
government. Here is a difference, as four to one, between the 
longest and the shortest periods ; and yet it would not by easy to 
show, that Connecticut or Rhode Island is better governed, or en- 
joys a greater share of rational liberty, than South Carolina; or 
that either the one or the other of these states are distinguished 
.in these respects, and by these causes, from the states whose elec- 
tions are different from both. 

In searching for the grounds of this doctrine, I can discover but 
one,' and that is wholly inapplicable to our case. The important 
distinction so well understood in America, betv\^een the constitution 
established by the people, and unalterable by the government; 
and a law established by the government and alterable by the gov- 
ernment, seems to have been little understood, and less observed 
in any other country. - Wherever the supreme power of legislation 
has resided, has been supposed to reside also a full power to change 
the form of the government. Even in Great Britain, Avhere the 
principles of political and civil liberty have been most discussed, 
and where v/e hear most of the rights of the constitution, it is 
maintained, that the authority of the parliament is transcendent, 
and uncontro'lable, as well with regard to the constitution, as the 
ordinary objects of legislative provision. They have accordingly, 
in several instances, actually changed by legislative acts, some of 
the most fundamental articles of the govornment. They have in 
particular, on several occasions, changed the period of election ; 
and, on the last occasion, not only introduced septennial in place of 
triennial elections; but, by the same act, continued themselves in 
place four years beyond the term for v/hich they were elected by 
the people. An attention to these dangerous practices has pro- 
duced a very natural alarm in the votaries of free government of 
which frequency of elections is the corner-stone ; and has led them 
to seek for some security to liberty, against the danger to which it 
is exposed. Where no constitution, paramount to the government, 
either existed or could be obtained, no constitutional security, sim- 



248 THE FEDERALIST. 

ilar to that established ia the United States, was to be attempted. 
Some other security, therefore, was to be sought for, and what 
better security would the case admit, than thai of selecting and 
appealing to some simple and familiar portion of time, as a stand- 
ard for measuring the danger of innovations, for fixing the na- 
tional sentiment, and for uniting the patriotic exertions? The 
most simple and familiar portion of time, applicable to the sub- 
ject, was that of a year : and hence the doctrine has been incul- 
cated by a laudable zeal to erect some barrier against the gradual 
innovations of an unlimited government, that the advance towards 
tyranny was to be calculated by the distance of departure from 
the fixed point of annual elections. But what necessity can there 
be of applying this expedient to a government, limited as the fed- 
eral government will be, by the authority of a paramount consti- 
tution ? Or who will pretend that the liberiies of the people of 
America will not be more secure under biennial elections, unalter- 
ably fixed by such a constitution, than those of any other nation 
would be, where elections were annual, or even more frequent, but 
subject to alterations by the ordinary power of the government ? 

The second question stated is, whether biennial elections be ne- 
cessary or useful ? The propriety of answering this question in the 
affirmative, will appear from several very obvious considerations. 

No man can be a competent legislator, who does not add, to an 
upright intention and a sound judgment, a certain degree of knowl- 
edge of the subjects on which he is to legislate. A part of this 
knowledge may be acquired by means of information, which lie 
within the compass of men in private, as well as public stations. 
Another part can only be attained, or at least thoroughly attained, 
by actual experience in the station which requires the use of it. 
The period of service, ought, therefore, in all such cases, to bear 
some proportion to the extent of practical knowledge, requisite to 
the due performance of the service. The period of legislative ser- 
vice established in most of the states for the more numerous 
branch is, as we have seen, one year. The question then may 
be put into this simple form : does the period of two years bear 
no greater proportion to the knowledge requisite for federal legis- 
lation than one year does to the knowledge requisite for state legis- 
lation ? The very statement of the question, in this form, sug- 
gests the answer that ought to be given to it. 

In a single state, the requisite knowledge relates to the existing 
laws, which are uniform throughout the state, and with which all 
the citizens are more or less conversant ; and to the general affairs 
of the state, which- lie within a small compass, are not very diver- 
sified, and occupy much of the atteniion and conversation of every 
class of people. The great theatre of the United States presents 
a very different scene. The laws are so far from being uniform, 
that they vary in every state ; whilst the public affairs of the union 



THE FEDERALIST. 249 

nre spread throughout a very extensive region, and are extremely 
(iiversified by the local affairs connected with them, and can with 
difficulty be correctly learnt in any other place, than in the central 
counci-ls, to which a knowledge of them will be brought by the 
riipresentatives of every part of the empire. Yet some knowledge 
of the affairs, and even of the laws of all the states, ought to be 
pi ss^ssed by the members from each of the states. How can for- 
eign trade be properl]^ regulated by uniform laws, without some 
acquaintance with the commerce, the ports, the usages and the 
regulations of the different states? Ho v/ can the trade between 
the different states be duly regulated, without some knowledge of 
tluu'r relative situations in these and other respects ? How can 
taxes be jtidiciously imposed, and effectually collected, if they be 
not accommodated to the different laws and local circumstances 
relating to these objects in the different stales ? How can uniform 
regulations for the militia be duly provided, v/ithout a similar 
knowledge of some internal circumstances by which the states are 
distinguished from each other ? These are the principal ol)jectg 
of federal legislation, and suggest, most forcibly, the extensive in~ 
foimation which the representatives ought to acquire. The other 
interior objects will require a proportional degree of information 
wilh regard to them. 

It is true, that all these difficulties will, by degrees, be very much 
diminished. The most laborious task will be the proper inaugura- 
tion of the government, and the primeval formation of a federal 
code. Improvements on the first draught will every year become 
both easier and fewer. Past transactions of the government will 
be a ready and accurate source of information to new members. 
The affairs of the union will become more and more objects of cu- 
riosity and conversation among the citizens at large. And the in- 
creased intercourse among those of different states will contribut©^ 
not a little to diffuse a mutual knowledge of their affairs, as thig 
again will contribute to a general assimilation of their manners 
and laws.' But with all these abatements, the business of federal 
legislation must continue so far to exceed, both in novelty and dif- 
ficulty, the legislative business of a single state, as to justify the 
lonjrer period of service assigned to those who are to transact it. 

A branch of knowledge, which belongs to the acquirements of a 
federal representative, and which has not been mentioned, is (hat 
of foreign affairs. In regulating our own commerce, he ought to 
be not only acquainted with the treaties between the United 
States and other nations, but also with the commercial policy and 
laws of other nations. He ought not to be altogether ignorant of 
the law of nations ; for that, as far as it is a proper object of mu- 
nicipal legislation, is submitted to the federal government. And 
although the house of representatives is not immediately to partici- 
pate in foreign negotiations and arrangements, yet from the neces- 

32 



250 THE FEDERALIST. 

sary connection between the several branches of public affairs, 
those particular branches will frequently deserve attention in the 
ordinary course of legislation, and will sometimes demand par- 
ticular legislative sanction and cooperation. Some portion of this 
knowledge may, no doubt, be acquired in a man's closet ; bnt 
some of it also can only be derived from the public sources of in- 
formation ; and all of it will be acquired to best eflect, by a prac- 
tical attention to the subject, during the period of actual service 
in the legislature. 

Tl^-re are other considerations, of less importance, perhaps, but 
which are not unv/orthy of notice. The distance which many 
of the representatives will be obliged to travel, and the arrange- 
ments rendered necessary by that circumstance, might i»e ranch 
more serious objections with fit men to this service, if limited to 
a single year, than if extended to two years. No argument can 
be drawn on this subject, from the case of the delegates to the 
existing congress. They are elected annually, it is true ; but 
their reelection is considered by the legislative assemblies almost 
as a matter of course. The election of the representatives by the 
people would not be governed By the same principle. 

A few of the members, as happens in all such assemblies, will 
possess superior talents ; will, by frequent reelections, become 
members of long standing ; will be thoroughly masters of the 
public business, and perhaps not unwilling to avail themselves of 
those advantages. The greater the proportion of new members, 
and the less the information of the bulk of the merhbers, the 
more apt will they be to_fall into the snares that may be laid for 
them. This remark is no less applicable to the relation which 
will subsist between, the house of representatives and the senate. 

It is an inconvenience mingled with the advantages of our fre- 
quent elections, even in single states, where they are large, and 
hold but lOne legislative session in a year, that spurious elections 
cannot be investigated and^ annulled in time for the decision to 
have its due effect. If a return can be obtained, no matter by 
what unlawful means, the irregular member, who takes his seat of 
course, is sure of holding it a sufficient time to answer his purposes. 
Hence, a very pernicious encouragement is given to the use of un- 
lawful means, for obtaining irregular returns. Were elections for 
the federal legislature to be annual, this practice might become a 
very serious abuse, particularly in the more distant states. Each 
house is, as it necessarily must be, the judge of the elections, qual- 
■ ifications, and returns of its members ; and whatever improvements 
may be suggested by experience, for simplifying and accelerating 
the process in (disputed cases, so great a portion of a year would 
unavoidably elapse, before an illegitimate member could be dis- 
possessed of his seat, that the prospect of such an event would be 
little check to unfair and illicit means of obtaining a seat. 



THE FEDERALIST. 251 

All these considerations taken together, warrant us in affirming, 
that biennial elections will be as useful to the affairs of the public, 
as we have seen that thej will be safe to the liberty of the people. 

PUBLIUS. 



BY JAMES MADISON. 



THE SAME SUBJECT CONTINUED, WITH A VIEW TO THE RATIO OF 
REPRESENTATION. 

The next view which I shall take of the house of representa- 
tives, relates to the apportionment of its members to the several 
states, which is to be determined by the same rule with that of 
direct taxes. 

It is not contended, that the number of people in each state 
ought not to be the standard for regulating the proportion of those 
who are-to represent the people of each state. The establishment 
of the same rule for the apportionment of taxes will probably be 
as little contested ; though the rule itself, in this case, is by no 
means founded on the same principle. In the former case, the 
rule is understood to refer to the personal rights of the people, 
with which it has a natural and universal connexion. In the latter, 
it has reference to the proportion of wealth, of which it is in no 
case a precise measure, and in ordinary cases a verj'' unfit one. 
But notwithstanding the imperfection of the rule as applied to the 
relative wealth and contributions of the states, it is evidently the 
least exceptionable among the practicable rules; and had too re- 
cently obtained the !7eneral sanction of America, not to have found 
a ready preference with the convention. 

All this is admitted, it will perhaps be said : but does it follow, 
from an admission of numbers for the measure of representation, 
or of slaves combined with free citizens as a ratio of taxation, 
that slaves ought to be included in the numerical rule of repre- 
sentation ? Slaves are considered as property, not as persons. 
They ought, therefore, to be comprehended in estimates of taxa- 
tion, which are founded ou property, and to be excluded from rep- 
resentation, which is regulated by a census of persons. This is 
the objection, as I understand it, stated in its full force. I shall be 
equally candid in stating the reasoning which may be offered on 
the opposite side. , 

We subscribe to the doctrine, might one of our southern breth- 
ren observe, that representation relates more immediately to per- 
soi]s, and taxation more immediately to property, and we join in 



^52 THE FEDERALIST. 

the application of this distinction to the case of our slaves. . But 
we must deny the fact, that slaves are considered merely as pro- 
perty, and in no respect whatever as persons. The true state of 
the case is, that they partake of both these qualities: being con- 
sidered by our laws, in some respects, as persons, and in other re- 
spects as property. In being compelled to labor, not for himself, 
but for a master ; in being vendible by one master to another mas- 
ter ; and in being subject at all times to be restrained in his liberty 
and chastised in his body, by the capricious will of another; the 
slave may appear to be degraded from the human rank, and classed 
with those irrational arn'mals which fall under the legal denomina- 
tion of properly. In being protected, on the other hand, in his 
life and in his limbs, against the violence of all others, even the 
master of his labor and his liberty ; and in being punishable himself 
for all violence committed against others ; the slave is no Iccs evi- 
» dently regarded by the law as a member of tiie society, not as a 
part of the irrational creation ; as a moral person, not as a mere 
article of property. The federal constitution, therefore, decides 
with great propriety on the case of our slaves, when it views them in 
the niixed character of persons and of property. This is in fact 
their true character. It is the character bestowed on them by 
the laws under which they live; and it will not be denied, that 
these are the proper criterion ; because it is only under the pretext 
that the laws have transformed the negroes into subjects of pro- 
perty, that a place is disputed ihem in the computation of num- 
bers ; and it is admitted, that if the laws were to restore the rights 
which have been taken away, the negroes could no longer be re- 
fused an equal share of representation with the other inhabitants. 
This question may be placed in another light. It is agreed on all 
sides, that numbers are the best scale of wealth and taxation, as 
they are the only proper scale of representation. Would the con- 
vention have been impaitial or consistent, if they had rejected 
the slaves from the list of inhabitants, when the shares of repre- 
resentation were to be calculated ; and inserted them on the lists 
when the tariff of contributions was to be adjusted ? Could it be 
reasonably expected, that the southern states would concur in a 
system, which considered their slaves in some degree as men, when 
burdens were to be imposed, but refused to consider them in the 
same light, when advantages were to be conferred ? Might not 
some surprise also be expressed, that those who reproach the south- 
ern states with the barbarous policy of considering as property a 
part of their human brethren, shonld themselves contend, that 
the government to which all the states are to be [)arties, ought to 
consider this unfortunate race more completely in the unnatural 
light of property, than the very laws of which they complain ? 

It may be replied, perhaps, that slaves are not included in the 
estimate of representatives in any of the states possessing them. 



THE FEDERALIST. 253 

They iieit(ier vote themselves, nor increase the votes of their 
masters. Upon what principle, then, onght they to be taken into 
the iederal' estimate of representation? In rejecting them alto- 
gether, the cotjsitiition would, in this respect, have followed the 
very laws which have been appealed to, as the proper guide. 

This objection is repelled by a single observation. It is a fun- 
damental principle of the proposed constitution, that as the aggre- 
gate number of representatives allotted to the several states is to 
be determined by a federal rule, tounded on the aggregate number 
of inhabitants; so the right of choosing this allotted number in 
each state, is to be exercised by such part of the inhabitants, as the 
state itself may desigiiate. The qualifications on which the right 
of suffrage depend, are not perhaps the same in any two states. 
In some of the states, the difference is very material. In every 
slate, a certain proportion of inhabitants are deprived of this right 
by the constitution of the state, who will be included in the cen- 
sus by which the federal constitution af)portions the representa- 
tives. In this point of view, .the southern states might retort the 
complaint, by insisting that the principle laid down by the con- 
vention required that no regard should be had to the policy of par- 
ticular states towards their own inhabitants; and consequently, 
that the slaves, as inhabitants, should have been admitted into the 
census according to their full number, in like manner with other 
inhabitants, who, by the policy of other states, are not admitted 
to all the rights of citizens. A rigorous adherence, however, to 
this principle, is waived by those who would be gainers by it. 
All that they ask is, that equal moderation be shown on the other 
side. Let the case of the slaves be considered, as it is in truth, a 
peculiar one. Let the compromisitig expedient of the constitution 
be mutually adopted, which regards them as inhabitants, but as 
debased by servitude below the equal level of free inhabitants, 
which regards the slave as divested of two filths ofMhe rnmi. 

After all, may not another ground be taken on which this arti- 
cle of the constitution will' admit of a still more ready defence ? 
We have hitherto proceeded on the idea, that representation relat- 
ed to persons only, and not at all to property. But is it a just 
idea? Government is instituted no less for protection of the pro- 
perty, than of the persons of individuals. The one as well as the 
other, therefore, may be considered as represented by those who 
are charged with the government. Upon this principle it is, that 
in several of the states, and particularly in the state of New York, 
una branch of the government is intended more especially to be 
the guardian of property, and is accordingly elected by that part 
of the society which is most interested in this object of govern- 
ment. In the federal constitution, this policy does not prevail. 
The rights of property are committed into the same hands, with 



254 THE FEDERALIST. ' 

the personal rights. Some attention ought, therefore, to be paid- 
to property, in the choice of those hands. 

For another reason, the votes allowed in the federal legislature 
to the people of each state, ought to bear some proportion to the 
comparative wealth of the states. States have not, like individuals, 
an influence over each other, arising from superior advantages of 
fortune. If the law allows an opulent citizen but a single vote in 
the choice of his representative, the respect and consequence which 
he derives from his fortunate situation, very frequently guide the 
votes of others to the objects of his choice; and through this im- 
perceptible channel, the rights of property are conveyed into the 
public representation. A state possesses no such influence over 
other states. - It is not probable, that the richest state in the con- 
federacy will evfer influence the choice of a single representative, 
in any other state. Nor will the representatives of the larger and 
richer states, possess any other advantage in the federal legislature, 
over the representatives of other states, than what may result from 
their superior number alone. i\s far, therefore, as their superior 
wealth and weight may justly entitle them to any advantage, it 
ought to be secured to them by a superior share of representation. 
The new constitution is, in this respect, materially different from 
the existing confederation, as well as from that qf the United 
Netherlands, and other similar confederacies. In each of the lat- 
ter, the efficacy of the federal resolutions depends on the subse- 
quent and voluntary resolutions of the states composing the union. 
Hence the states, though possessing an equal vote in the public 
councils, have an unequal influence, corresponding with the un- 
equal importance of these subsequent atid volulitary resolutions. 
Under the proposed constitution, the federal acts will take effect 
without the necessary intervention of the individual states. They 
will depend merely on the majority of votes in the federal legisla- 
ture, and consequently each vote, whether proceeding from a larger 
or smaller state, or a state more or less wealihy or powerful, will 
have an equal weight and efficacy ; in the same manner as the 
votes individually given in a state legislature, by the representa- 
tives of unequal counties or other districts, have each a precise 
equality of value and eff'ecf ; or if there be any difference in the 
case. It proceeds from the difference in the personal character of 
the individual representative, rather than iVom any regard to 
the extent of the district from which he comes. 

Such is the reasoning which an advocate for the southern in- 
terests might employ on this subject ; and although it may ap- 
pear to be a little strained in some points, yet on the whole, I 
must confess, that it fully reconciles me to the scale of represen- 
tation which the convention have established. 

In one respect, the establishment of a common measure for rep- 
resentation and taxation, will have a very salutary efiect. As the 



THE FEDERALIST. 255 

accuracy of the census to be obtained by the congress, will neces- 
sarily depend in a considerable degree, on the disposition, if not 
on the cooperation of the states, it is of great importance that 
the states should feel as little bias as possible, to swell or to re- 
duce the amount of their luimbers. Were their share of represen- 
tation alone to be governed by this rale, they would have an in- 
terest in exaggerating their iiihabitants. Were the rule to decide 
their share of taxation alone, a contrary temptation would prevail. 
Fij extending the rule to both objects, the states will have oppo- 
site interests, which will control and balance each other, and pro- 
duce the requisite impartiality. PUBLIUS. 



BY JAMES MADISOX. 



THE SAME SUBJECT CONTINUED, IN RELATION TO THE TOTAL NUM-= 
BER OP THE BODY. 

The number of which the house of representatives is to con- 
sist, forms another, and a very interesting point of view, under 
which this branch of the federal legislature may be contemplated. 
Scarce any article indeed in the whole constitution, seems to be 
rendered more worthy of attention, by the weight of character, 
and the apparent force of argument, with \vhich it has been as- 
sailed. 

The charges exhibited against it are, first, that so small a num- 
ber of representatives will be an unsafe depositary of the public 
interests : secondly that they will not possess a proper knowledge 
of the local circumstances of their numerous constituents ; thirdly, 
that they will be taken from that class of citizens which will sym- 
pathize least with the feelings of the mass of the people, and be 
most likely to aim at a permanent elevation of the few, on the de- 
pression of the many; fourthly, that defective as the number wil 
be in the first instance, it will be more and more disproportion- 
ate, by the increase of the people, and the obstacles which will 
.prevent a correspondent increase oi the representatives. 

In general it may be remarked on this subject, that no political 
problem is less susceptible of a precise solution, than that which 
relates to the number most convenient for a representative legisla- 
ture: nor is there any point on which the policy of the several 
V states is more at variance ; whether we compare their legislative 
assemblies directly wit-h each other, or consider the proportions 
which they respectively bear to the number of their constituents. 



256 THE FEDERALIST. 

Passing over the difference between the smallest and larger states, 
as Delaware, whose most nnmerons branch consists of twenty-one 
representatives, and Massaclmsetts, where it amounts to between 
three and for.r hundred ; a very considerable difference is observa- 
ble among states nearly eqnal in population. The number of rep- 
resentatives in Pennsylvania is not more than one fifth of that in 
the state last mentioned. New York, whose population is to that 
of South Carolina as six to five, has little more than one third of 
the number of representatives. As great a disparity prevails be- 
tween the states of Georgia and Delav/are or Rhode Island. In 
Pennsylvania, the representatives do not bear a -greater proportion 
to their constituents, than of one for every 'four or five thousand. 
In Rhode Island, they hear a proportion of at least one for every 
thousand. And according to the constitution of Georgia, the pro- 
porti'on may be carried to one for every ten electors; and must 
unavoidably far exceed the proportion in any of the other states. 

Another general remark to be made is, that the ratio between the 
representatives and tlie people, ougnt not to be the same, where 
the latter are very nuiuerous, as where they are very (ew. Were 
the representatives in Virginia to be regulated by the standard in 
Rhode Island they would, at this time, amount to between four 
and five hundred ; and twenty or thirty years hence, to a thousand. 
On the other haiid, the ratio of Pennsylvania, if applied to the state 
of Delaware, would reduce the representative assembly of the 
latter to seven or eight members. Nothing can be more fal- 
lacious, than to found our political calculations on arithmetical 
principles. Sixty or seventy men may be more properly trusted 
with a given degree of power, than six or seven. But it does not 
follow, that six or seven hundred would be proportionably a better 
depositary. And if we carry on the supposition to six or seven 
thousand, the whole reasoning ought to be reversed. The truth is, 
that in all cases, a certain number at least seems to be necessary to 
secure the benefits of free cxinsultation and discussion ; and to 
guard against too easy a combination for improper purposes: as 
on the other hand, the number ought at most to be kept within a 
certain limit, in order to avoid the confusion and intemperance of 
a multitude. In all very numerous assemblies, of whatever charac- 
ters composed, passion never fails to wrest the sceptre from reason. 
Had every Athenian citizen been a Socrates, every Athenian as- 
sembly would still have been a mob. 

It is necessary also to recollect here the observations which 
were aj^plied to the case of biennial elections. For the same rea- 
son that the limited powers of the congress, and the control of the 
state legislatures, justify less frequent elections than the public 
safety might otherwise require ; the members of the congress need 
be less numerous than if they possessed the whole power of legisla- 



THE FEDERALIST. 257 

tioH, and were under no other than the ordinary restraints of oth- 
er legislative bodies. 

With these general ideas in our minds, let us weigh the objec- 
tions which have been stated against the number of members 
proposed for the house of representatives. It is said, in the first 
place, that so small a number cannot be safely trusted with so 
much power. 

The number of which this branch of the legislature is to con- 
sist, at the outset of the government, will be sixty-five. Within 
three years a census is to be taken, when the number may be aug- 
mented to one for every thirty thousand inhabitants; and within 
every successive period of ten years, the census is to be renewed 
and augmentations may continue to be made under the above lim- 
itation. It will not be thought an extravagant conjecture, that the 
first census will, at the rate of one for every thirty thousand, raise 
the number of representatives to at least one hundred. Estimat- 
ing the negroes in the proportion of three-fifths, it can scarcely be 
doubted, that the population of the United States v/ill, by that 
time, if it does not already, amount to three millions. At the ex- 
piration of twenty-five years, accoixiing to the computed rate of 
increase, the number of representatives will aRUMint to two hun- 
dred ; and of fifty years, to four hundred. This is a number, 
which I presume will put an end to all fears arising from the 
smallness of the body. I take for granted here, what I shall, in 
answering the fourth objection, hereafter show, that the number 
of representatives will be augmented, from time to time, in the 
manner provided by the constitution. On a contrary supposition, 
I should admit the objection to have very great weight indeed. 

The true question to be decided then is, whether the smallness 
of the number, as a temporary regulation, be dangerous to the 
public liberty ? Whether sixty-five members for a few years, and 
a hundred, or two himdred, for a few more, be a safe depository 
for a limited and well-guarded power of legislating for the United 
States? I must own that I could not give a negative answer to 
?his question, without first obliterating every impression which 1 
have received,, Vv^ith regard to the present genius of the people of 
America, the spirit which actuates the state legislatures, and the 
principles which are incorporated with the political character of 
every class of citi-sens. I am unable to conceive, that the people 
of America, in their present temper, or under any circumstances 
which can speedily happen, will choose, and every second year 
repeat the choice, of sixty-five or an hundred men, who would 
be disposed to form and pursue a scheme of tyranny or treachery. 
I am unable to conceive that the state Ifgislatures, which must 
feel so many motives to watch, and which possess so many means 
of counteracting the federal legislature, would fail either to detect 
or to defeat a conspiracy of the latter against the liberties of their^ 
33 



258 THE FEDERALIST. 

Comrfion constituents. I am equally unable to conceive, that there 
are at this time, or can be in any short time in the United Slates, 
any sixty-five or an hundred men capable of recommending them- 
selves to the choice of the people at large, who would either de- 
sire or dare within the short space of two years, to betray the sol- 
emn trust committed to them. What change of circumstances, 
time, and a fuller population of our country, may produce, requires " 
a prophetic spirit to declare, which makes no part of my preten- 
sions. But judging from the circumstances now before us, and 
from the probable state of them within a moderate period of time, 
I must pronounce, that the liberties of America cannot be unsafe 
in the number of hands proposed by the federal constitution. 

F'rom what quarter can the danger proceed ? Are we afraid of 
foreign gold ? If foreign gold could so easily corrupt our federal 
rulers, and enable them to ensnare and betray their constituents, 
how has it happened that we are at this time a free and independ- 
ent nation? The congress which conducted us through the rev- 
olution, were a less numerous body than their successors will be: 
they were not chosen by, nor responsible to, their fellow citizens 
at large : though appointed from year to year, and recallable at 
pleasure, they were getierally continued for three years; and pri- 
or to the ratification of the federal articles, for a still longer term : 
they held their consultations always under the veil of secrecy: 
they had the sole transaction of our affairs with foreign nations: 
tiirough the whole course of the war, they had the fate of their 
country more in their hands, than it is to be hoped will ever be 
the case with our future representatives ; and from the greatness 
of the prize at stake, and the eagerness of the party which lost 
it, it may well be supposed, that the use of other means than 
force would not have been scrup'ed : yet we know by happy ex- 
perience, that the public trust was not betrayed ; nor has the 
purity of our public councils in this particular ever suffered, even 
from the whispers of calumny. 

Is the danger apprehended from the other branches of the fed- 
eral government? But where are the means to be found by the 
president, or the senate, or both ? Tlieir emoluments of office, it 
is to be presumed, will not, and without a previous corruption of 
the house of representative^ cannot, more than sufBce for very dif- 
ferent purposes: their private fortunes, as they must all be Ameri- 
can citizens, cannot possibly be sources of danger. The only 
means then which they can possess, will be in the dispensation of 
appointments. Is it here that suspicion rests her charge ? Some- 
times we are told, that this fund of corruption is to be exhausted 
by the president, in subduing the virtue of the senate. Now, the 
fidelity of the other house is to be the victim. The improbabili- 
ty of such a mercenary and perfidious combination of the several 
members of government^ standing on as different foundations as 



THE FEDERALIST. 259 

republican principles will well admit, and at the same time ac- 
conntable to the society over which they are placed, ought alone 
to quiet this apprehension. But fortunately, the constitution has 
provided a still farther safeguard. The members of the congress 
are rendered- ineligible to any civil offices, that may be created, or 
of which the emoluments may be increased, during the term of 
their election. No offices therefore can be dealt out to the exist- 
ing members, but such as may become vacant by ordinary casual- 
ties ; and to suppose that these would be sufficient to purchase the 
guardians of the people, selected by the people themselves, is to 
renounce every rule by which events ought to be calculated, and 
to substitute an indiscriminate and unbounded jealousy, with which 
all reasoning must be vain. The sincere friends of liberty, who 
give themselves up to the extravagancies of tiiis passion, are not 
aware of the injury they do their own cause. As there is a degree 
of depravity in mankind, which requires a certain degree of circum- 
spection and distrust : so there are other qualities in human nature, 
which justify a portion of esteem and confidence. Republican 
government presupposes the existence of these qualities in a higher 
degree than any other form. Were the pictures which have been 
drawn by the political jealousy of some among us, faithful like- 
nesses of the human character, the inference would be, that there 
is not sufficient virtue among men for self-government : and that 
iiothing less than the chains of despotism can restrain them from 
destroying and devouring one another. PUBLIUS. 



BY JAMES MADISON. 



THE SAME SUBJECT CONTINUED, IN RELATION TO THE SAME POINT. 

The second charge against the house of representatives is, that 
it will be too small to possess a due knowledge of the interests of 
its constituents. 

As this objection evidently proceeds from a comparison of the 
proposed number of representatives, with the great extent of the 
United States, the number of their inhabitants, and the diversity 
of their interests, without taking into view, at the same time, the 
circumstances which will distinguish the congress from other leg- 
islative bodies, the best answer that can be given to it will be a 
brief explanation of these peculiarities. 

It is a sound and important principle, that the representative 
ought to be acquainted with the interest and circumstances of his 
constituents. But this principle can extend no further, than to 



260 THE FEDERALIST. 

those circumstances and interests to which the authority and care 
of the representative relate. An ignorance of a variety of minute 
and particular objects, which do not lie within the compass of 
legislation, is consistent with every attribute necessary to a due 
performance of the legislative trust. In determining the extent 
of information required in the exercise of a particular authority, 
recourse then must be had to the objects within the purview of 
that authority. 

What are to be the objects of federal legislation ? Those which 
are of most importance, and which seem most to require local 
knowledge, are commerce, taxation, and the militia. 

A proper regulation of commerce requires much information, as 
has been elsewhere remarked ; but as far as this information relates 
to the laws and local situation of each individual state, a very few 
representatives would be very sufficient vehicles of it to the fed- 
eral councils. 

Taxation will consist, in a great measure, of duties which wilS 
be involved in the regulation of commerce. So far the preceding 
remark is applicable to this object. As far as it may consist of in- 
ternal collections, a more diffusive knowledge of the circumstances, 
of the stale may be necessary. But will not this also be possessed 
in sufficient degree by a very few intelligent men, diffusively elect- 
ed within the state ? Divide the largest state into ten or twelve 
districts, and it will be found that there will be no peculiar local 
interest in either, which will not be within the knowledge of the 
representative of the district. Besides this source of information, 
the laws of the state, framed by representatives from every part of 
it, will be almost of theoiselves a sufficient guide. In every state 
there have been made, and must continue to be made, regula- 
tions on this subject, which will, in many cases, leave little more to 
be done by the federal legislature, than to review the different laws, 
and reduce them into one general act. A skilful individual in his 
closet, with all the local codes before him, might compile a law on 
some subjects of taxation for the whole union, without any aid from 
oral information ; and -it m^y be expected, that whenever internal 
taxes may be necessary, and particularly in cases requiring unifor- 
mity throughout the states, the more simple objects, will be prefer- 
red. To be fully sensible of the facility which will be given to this 
branch of federal legislation, by the assistance of the state codes, 
we need only suppose for a moment, that this or any other state 
were divided into a number of parts, each having and exercising 
within itself a power of local legislation. Is it not evident thaS 
a degree of local information and preparatory labor, would be 
found in the several volumes of their proceedings, which would 
very much shorten the labors of the general legislature, and 
render a much smaller number of members sufficient for it ? 

The federal councils will derive great advantage Irom another 



THE FEDERALIST. 261 

circumstance. Tlie representatives of each state will not only 
bring with them a considerable knowledge of its laws, and a local 
knowledge of their respective districts; but will probably in all 
cases have been members, and may even at the very time be 
members of the state legislature, where all the local information 
and interests of the state are assembled, and from whence they 
may easily be conveyed by a very few hands into the legislature 
of the United States. 

With regard to the regulation of the militia, there are scarcely 
any circumstances in reference to which local knowledge can be 
said to be necessary. The general face of the country, whether 
mountainous or level, most fit for the operations of infantry or 
cavalry, is almost the only consideration of this nature that can 
occur. The art of war teaches general principles of organiza- 
tion, movement, and discipline, which apply universally. 

The attentive reader will discern that the reasoning here used, 
to prove the sufficiency of a moderate number of representatives, 
does not in any respect, contradict what was urged on another oc- 
casion with regard to the extensive information which the repre- 
sentatives ought to possess, and the time that might be necessary 
for acquiring it. This information, so far as it may relate to local 
objects, is rendered necessary and difRcult, not by a difference of 
laws and local circumstances within a single state, but of those 
among different states. Taking each state by itself, its laws are 
the same, and its interests but little diversified. A few men, 
therefore, will possess all the knowledge requisite for a proper 
representation of them. Were the interests and affairs of each in- 
dividual state perfectly simple and uniform, a knowledge of them 
in one part would involve a knowledge of them in every other, 
and the vi^hole state might be competently represented by a single 
member taken from any part of it. Oi\ a comparison of the dif- 
ferent states together, we find a great dissimilarity in their laws, 
and in many other circumstances connected with the objects of 
federal legislation, with all of which the federal representatives 
ought to have some acquaintance. Whilst a few representatives, 
therefore, from each state, may bring with them a due knowledge 
of their own state, every representative will have much informa- 
tion to acquire concerning all the other states. The changes of 
time, as was formerly remarked, on the comparative situation of 
the different states, will have an assimilating effect. The effect 
of time on the internal affairs of the states, taken singly, will be 
just the contrary. At present, some of the states are little more 
than a society of husbandmen. Few of them have made much 
progress in those branches of industry, which give a variety apd 
complexity to the affairs of a nation. These however, will in 
all of them be the fruits of a more advanced population ; and 
will require, on the part of each state, a fuller representation. 



262 THE FEDERALIST. 

The foresight of the convention has accordingly taken care that 
ttie progress of population may be accompanied with a proper 
increase of the representative branch of the governn^ent. 

The experience of Great Britain, which presents to mankinds© 
many political lessons, both of the monitory and exemplary kind, 
and which has been frequently consulted in the cotn-se ot these in- 
quiries, corroborates the result of the reflections which we have 
just made. The number of inhabitants in the two kingdoms of 
England and Scotland, cannot be stated at less than eight millions. 
The representatives of these eight millions in the house of com- 
mons, amount to five hundred and fifty-eight. Of this number, 
one ninth are elected by three hundred and sixty-four persons, 
and one half, by five thousand seven hundred £\nd twenty-three 
persons.* It cannot be supposed that the half thus elected, and 
who do not even reside among the people at large, can add any 
thing either to the security of the people against the government, 
or to the knowledge of their circumstances and interests in the 
legislative councils. On the contrary, it is notorious, that they 
are more frequently the representatives and instruments of the 
executive magistrate, than the guardians and advocates of the 
popular rights. They might therefore, with great propriety, be 
considered as something more than a mere deduction from the 
real representatives of the nation. We will, however, consider 
them in this light alone, and will not extend the deduction to a 
considerable number of others, who do not reside among their 
constituents, are very faintly connected with them, and have very 
little particular knowledge of their afiairs. With all these con- 
cessions, two hundred and seventy-nine persons only, will be the 
depositary of the safety, intei-est, and happiness of eight millions; 
that is to say, there will be one representative only, to maintain 
the rights, and explain the situation, of twenty-eight tlioasand 
six hundred and seventy constituents, in an assembly exposed to 
the whole force of executive influence, and extending its authority 
to every object of legislation within a nation whose affairs are 
in the highest. degree diversified and complicated. Yet it is very 
certain, not only that a valuable portion of freedom has been pre- 
served under all these circumstances, but that the defects in the 
British code are chargeable, in a very small proportion, on the 
ignorance of the legislature concerning the circumstances of the 
people. Allowing to this case the weight v/hich is due to it, 
and comparing it with that of the house of representatives as 
above explained, it seems to give the fullest assurance, that a 
representative for every thirty thousand inhabitants, will render 
the latter both a safe and competent guardian of the interests 
which will be confided to it. PUBLIUS. 

* Burgli's Political Disquisitions. 



THE FEDERALIST. 263 

BY JAMES MADISON. 

THR SAME SUBJECT CONTINUED, IN RELATION TO THE SUPPOSED 
TENDENCY OF THE- PLAN OP THE CONVENTION TO ELEVATE THE 
FEW ABOVE THE MANY. 

Tho third charge against the house of representatives is, that 
it will be taken from that class of citizens wliich will have least 
sympathy with the mass of the people: and be most likely to aim 
at an ambitions sacrifice of the many, to the aggrandizement of 
the (ew. 

Of all t,he objections which have been framed against the federal 
constitntion, this is perhaps the most extraordinary. Whilst the 
objection itself is leveled against a pretended oligarchy, the prin- 
ciple of it strikes at the very root of republican government. 

The aim of every political constitntion is, or ought to be, first, • 
to obtain for rulers men who possess most wisdom to discern, and 
most virtue to pursue, the common good of the society ; and, in 
the next place, to take the most effectual precautions for keeping 
them virtuous, whilst they continue to hold their public trust. The 
elective mode of obtaining rulers, is the characteristic policy of re- 
publican government. The means relied on in this form of gov- 
ernment for preventing their degeneracy, are numerous and vari- 
ous. The most effectual one, is such a limitation of the term of 
appointments, as will maintain a proper responsibility to the people. 

Let me now ask, what circumstance there is in the constitution 
of the house of representatives, that violates the principles of re- 
publican governmei\t ; or favors the elevation of the lew, on the 
ruins of the many? Let me ask, whether every circumstance is 
not, on the contrary, strictly conform.able to these principles; and 
scrupulously impartial to the rights and pretensions of every class 
and description of citizens? 

Who are to be the electors of the federal representatives? Not 
the rich, more than the poor; not the learned, more than the igno- 
rant ; not the haughty heirs of distinguished names, more than 
the humble sons of obscurity and unpropitious fortune. The 
electors are to be the great body of the people of the United States. 
They are to be the same who exercise the right in every state of 
electing the correspondent branch of the legislature of the state. 

Who are to be the objects of popular choice ? Every citizen 
whose merit may recommend him to the esteem and confidence 
of his country. No qualification of wealth, or birth, or religious 
faith, or of civil profession, is permitted to fetter the judgment or 
disappoint the inclination of the people. 

If we consider the situation of the men on whom the free suf- 



264 THE FEDERALIST. 

frages of their fellow-citizens may confer the representative trust, 
we shall find it involving every security which can be devised or 
desired for their fidelity to their constituents. 

In the first place, as they will have been distinguished by the 
preference of their fellow-citizens, we are to presume, that in gen- 
eral they will be somewhat distinguished also by those qualities 
which entitle them to it, and which promise a sincere and scra~ 
pulous regard to the nature of their engagements. 

In the second place, they will enter into the public service under 
circumstances which caimot fail to. produce a temporary affection 
at least to their constituents. There is in every breast a sensibil- 
ity to marks of honor, of favor, of esteem, and of confidence, 
which, apart from all considerations of interest, is some pledge 
for grateful and benevolent returns. Ingratitude is a common 
topic of declamation against human nature; and it must be con- 
fessed, that instances of it are but too frequent and flagrant, both 
in public and in private life. But the universal and extreme in- 
dignation which it inspires, is itself a proof of the energy and 
prevalence of the contrary sentiment. 

In the third place, those ties u^hicli bind the representative to 
his constituents, are strengthened by motives of a more selfish na- 
ture. His pride and vanity attach him to a form of government 
which favors his pretensions, and gives him a share in its honors 
and distinctions. Whatever hopes or projects might be entertaiii- 
ed by a few aspiring characters, it must generally happen, that a 
great proportion of the men deriving their advancement from their 
influence with the people, would have more to hope from a pres- 
ervation of their favor, than from innovations in the government 
subversive of the authority of the people. 

All these securities, however, would be found very insufficient 
without the restraint of frequent elections. Hence, in the fourth 
place, the house of representatives is so constituted, as to support 
in the members an habitual recollection of their dependence on the 
people. Before the sentiments impressed on their minds by the 
mode of their elevation can be effaced by the exercise of power, 
they will be compelled to anticipate the moment when their pow- 
er is to cease, when their exercise of it is to be reviewed, and 
when they must descend to the level from which they were raised ; 
there forever to remain, unless a faithful discharge of their trust 
shall have established their title to a renewal of it. 

I will add, as a fifth circumstance in the situation of the house 
of representatives, restraining them from oppressive measures, that 
they can make no law which will not have its full operation on 
themselves and their friends, as well as on the great mass of the 
society. This has always been deemed one of the strongest bonds 
by which human policy can connect the rulers and the people to- 
gether. It creates between them that communion of interest arid 



THE FEDERALIST. 265 

sympathy of sentiments, of which few governments have furnish- 
ed examples ; but without which every government degenerates 
into tyranny. If it be asked, what is to restrain the house of 
representatives from making legal discriminations in favor of 
themselves and a particular class of the society ; I answer, the 
genius of the whole system ; the nature of just and constitutional 
laws ; and above all, the vigilant and manly spirit which actuates 
the people of America ; a spirit which nourishes freedom, and 
in return is nourished by it. ! 

If this spirit shall ever be so far debased, as to tolerate a law 
not obligatory on the legislature, as well as on the people, the 
people will be prepared to tolerate any thing but liberty. 

Such will be the relation between the house of representatives 
and their constituents. Duty, gratitude, interest, ambition itself, 
are the chords by which they will be bound to fidelity and sym- 
pathy with the great mass of the people. It is possible that these 
may all be insufficient to control the caprice and wickedness of 
men. But are they not all that government will admit, and that 
human prudence can devise ? Are they not the genuine and the 
characteristic means, by which republican government provides 
for the liberty and happiness of the people ? Are they not the 
identical means on which every state government in the union 
relies for the attainment of these important ends? What then are 
we to understand by the objection which this paper has combat- 
ed? What are we to say to the men who profess the most flam- 
ing zeal for republican government, yet boldly impeach the fun- 
damental principle of it ; who pretend to be champions for the 
right and the capacity of the people to choose their own rulers, 
yet maintain that they will prefer those only who will immedi- 
ately and infallibly betray the trust committed to them. 

Were the objection to be read by one who had not seen the 
mode prescribed by the constitution for the choice of representa- 
tives, he could suppose nothing less, than that some unreasonable 
qualification of property was annexed to the right of suftVage ; or 
that the right of eligibility was limited to persons of particular 
families or fortunes; or at least that the mode prescribed by the 
state constitutions was in some respect or other, very grossly de- 
parted from. We have seen, how far such a supposition would 
err, as to the two first points. Nor would it, in fact, be less erro- 
neous as to the last. The only difference discoverable between 
the two cases is, that each representative of the United States 
will be elected by five or six thousand citizens ; whilst in the indi- 
vidual states, the election of a representative is left to about as 
many hundreds. Will it be pretended, that this difference is suffi- 
cient to justify an attachment to the state governments, and an 
abhorrence to the federal government ? If this be the point on 
which the objection turns, it deserves to be examined. 
34 



266 THE FEDERALIST. 

Is it supported by reason ? This cannot be said, without main- 
taining that five or six thousand citizens are less capable of choos- 
ing a fit representative, or more liable to be corrupted by an unfit 
one, than five or six hundred. Reason, on the contrary assures 
us, that as in so great a number a fit representative would be 
most likely to be found; so the choice would be less likely to 
be diverted from him, by the intrigues of the ambitious or the 
bribes of the rich. 

Is the consequence (wm this doctrine admissible? If we say 
that five or six hundred citizens are as many as can jointly exer- 
cise their right of suffrage, must we not deprive the people of the 
immediate choice of their public servants, in every instance, where 
the administration of the government does not require as many 
of them as will amount to" one for that number of citizens? 

Is the doctrine warranted hy facts? It was shown in the last 
paper, that the real representation in the British house of commons 
very little exceeds the proportion of one for every thirty thousand 
inhabitants. Besides a variety of powerful causes, not existing 
here, and which favor in that country the pretensions of rank and 
wealth, no person is eligible as a representative of a county unless 
he possess real estate of the clear value of six hundred pounds 
sterling per year ; nor of a city or borough, unless he possess a 
like estate of half that annual value. To this qualification, on 
the part of the county representatives, is added another on the 
part of the county electors, which restrains the right of suffrage to 
persons having a freehold estate of the annual value of more than 
twenty pounds sterling, according to the present- rate of money. 
Notwithstanding these unfavorable circumstances, and notwith- 
standing some very unequal laws in the British code, it cannot 
be said, that the representaiives of the nation have elevated the 
few on the ruins of the many. 

But we need not resort to foreign experience on this subject. 
Our own is explicit and decisive. The districts in New Hamp- 
shire, in which the senators are chosen immediately by the people, 
are nearly as large as will be necessary for her representatives in 
the congress. Those of Massachusetts are larger than will be ne- 
cessary for that purpose ; and those of New York still more so. 
In the last state, the members of assembly, for the cities and coun- 
ties of New York and Albany, are elected by very nearly as many 
voters as will be entitled to a representative in the congress, calcu- 
lating on the number of sixty-five representatives only. It makes 
no difference, that in these senatorial districts and counties, a num- 
ber of representatives are voted for by each elector, at the same 
time. If the same electors, at the same time, are capable of 
choosing four or five representatives, they cannot be incapable of 
choosing one. Pennsylvania is an additonal example. Some of 
her counties, which elect her state representatives, are almost as 



THE FEDERALIST. 267 

large as her districts will be by which her federal representatives 
will be elected. The city of Philadelphia is supposed to contaiti 
between fifty and sixty thousand souls. It will, therefore, form 
nearly two districts for the choice of federal representatives. It 
forms, hov/ever, but one county, in which every elector votes for 
each of its representatives in the state legislature. And what may 
appear to be still more directly to our purpose, the whole city 
actually elects a single member for the executive council. This 
is the case m all the other counties of the state. 

Are not these facts the most satisfactory proofs of the fallacy 
which has been employed against the branch of the federal govern- 
ment under consideratiun ? Has it appeared on trial, that the sen- 
ators of New Hampshire, Massachusetts and New York ; or the 
executive council of Pennsylvania; or the members of the assem- 
bly in the two last states, have betrayed any peculiar disposition 
to sacrifice the many to the few ; or are in any respect less worthy 
of their places, than the representatives and magistrates appointed 
in other states, by very small divisions of the people ? 

But there are cases of a stronger complexion than any which I 
have yet quoted. One branch of the legislature of Connecticut is 
so constituted, that each member of it is elected by the whole state. 
So is the governor of that state, of Massachusetts, and of this 
state, and tlie president of New Hampshire. I leave every man 
to decide, whether the result of any one of these experiments can 
be said to countenance a suspicion, that a diffusive mode of choos- 
ing representatives of the people tends to elevate traitors and to 
undermine the public liberty. PUBLIUS. 



BY JAMES MADISON. 

THE SAME SUBJECT CONTINUED, IN EELATION TO THE FUTUEE AUG- 
MENTATION OF THE MEMBERS. 

The remaining charge against the house of representatives, 
which 1 am to examine, is grounded on a supposition that the 
number of members will not be augmented from time to time, 
as the progress of population may demand. 

It has been admitted, that this objection, if well supported, 
would have great weight. The following observations will show, 
that like most other objections against the constitution, it can only 
proceed from a partial view of the subject ; or from a jealousy 
wliich discolors and disfigures every object which is beheld. 

1. Those who urge the objection seem not to have recollected, 
that the federal constitution will not suffer by a comparison with 



268 THE FEDERALIST. 

the state constitutions, in the security provided for a gradual aug- 
mentation of the number of representatives. The number which 
is to prevail in the first instance, is declared to be temporary. Its 
duration is hmited to the short term of three years. 

Within every successive term of ten years, a census of inhabi- 
tants is to be repeated. 'I'he unequivocal objects of these regula- 
tions are, first to readjust, from time to time, the apportionment of 
representatives to the number of inhabitants ; under the single ex- 
ception, that each state shall have one representative at least : sec- 
ondly, to augment the number of representatives at the same pe- 
riods ; under the sole limitation, that the whole number shall not 
exceed one for every thirty thousand inhabitants. If we review 
the constitutions of the several states, we shall find that some of 
them contain no determinate regulations on this subject ; that 
others correspond pretty much on this point with the federal con- 
stitution ; and that the most effectual security in any of them is 
resolvable into a mere directory provision. 

2. As far as experience has taken place on this subject, a grad- 
ual increase of representatives under the state constitution, has at 
least kept pace with that of the constituents; and it appears that 
the former have been as ready to concur in such measures as the 
latter have been to call for them, 

3. There is a peculiarity in the federal constitution, which in- 
sures a watchful attention in a majority both of the people and of 
their representatives, to a constitutional augmentation of the latter. 
The peculiarity lies in this, that one branch of the legislature is a 
representation of citizens; the other of the states: in the former, 
consequently, the larger states will have most weight ; in the latter, 
the advantage will be in favor of the smaller states. From this 
circumstance it may with certainty be inferred, that the larger 
states will be strenuous advocates for increasing the ikimber and 
weight of that part of the legislature, in which their influence pre- 
dominates. And it so happens, that four only of the largest will 
have a majority of the whole votes in the house of representatives. 
Should the representatives or people, therefore, of the smaller 
states, oppose at any time a reasonable addition of members, a co- 
alition of a very few states will be sufficient to overrule the oppo- 
sition ; a coalition, which notwithstanding the rivalship and local 
prejudices which might prevent it on ordinary occasions, would not 
fail to take place, when not merely prompted by common interest, 
but justified by equity and the principles of the constitution. 

It may be alleged, perhaps, that the senate would be prompted 
by like motives to an adverse coalition ; and as their concurrence 
would be indispensable, the just and constitutional views of the 
other branch might be defeated. This is the difficulty which has 
probably created the most serious apprehensions in the jealous 
friends of a numerous representation. Fortunately it is among the 



THE FEDERALIST. 269 

difficulties which, existing only in appearance, vanish on a close 
and accurate inspection. The following reflections will, if 1 mis- 
take not, be admitted to be conclusive and satisfactory on this point. 

Notwithstanding the equal authority which will subsist between 
the two houses on all legislative subjects, except the originating 
of money bills, it cannot be doubted, that the house, composed of 
the greater number of members, when supported by the more 
powerful states, and speaking the known and determined sense of 
a majority of the people, will have no small advantage in a ques- 
tion depending on the comparative firmness of the two houses. 

This advantage must be increased by the consciousness, felt 
by the same iside, of being supported in its demands by right, by 
reason, and by the constitution ; and the consciousness, on the 
opposite side, of contending against the force of all these solemn 
considerations. 

It is farther to be considered, that in the gradation between the 
smallest and largest states, there are several, which, though most 
likely in general to arrange themselves among the former, are too 
little removed in extent and population from the latter, to second 
an opposition to their just and legitimate pretensioris. Hence, it 
is by no means certain, that a majority of votes, even in the sen- 
ate, would be unfriendly to proper augmentations in the number 
of representatives. 

It will not be looking too far to add, that the senators from all 
the new states may be gained over to the just views of the house 
of representatives, by an expedient too obvious to be overlooked. 
As these states will, for a great length of time, advance in popu- 
lation with peculiar rapidity, they will be interested in frequent 
reapportionments of the representatives to the number of inhab- 
itants. The large states, therefore, who will prevail in the house 
of representatives, will have nothing to do, but to make reappor- 
tionments and augmentations mutually conditions of each other ; 
and the senators from all the most growing states will be bound 
to contend for the latter, by the interest which their states will 
feel in the former. 

These considerations seem to afford ample security on this sub- 
ject ; and ou^ht alone to satisfy all the doubts and fears which 
have been indulged with regard to it. Admitting, however, that 
they should all be insufficient to subdue the unjust policy of the 
smaller states, or their predominant influence in the councils of 
the senate ; a constitutional and infallible resource still remains 
with the larger states, by which they will be able at all times to 
accomplish their just purposes. The house of representatives 
can not only refuse, but they alone can propose the supplies re- 
quisite for the support of government. They, in a word, hold 
the purse ; that powerful instrument by which we behold, in the 
history of the British constitution, an infant and humble repre- 



270 THE FEDERALIST. 

sentation of the people gradually enlarging the sphere of its ac- 
tivity and importance, and finally reducing, as far as it seems to 
have wished, all the overgrown prerogatives of the other branch- 
es of the government. This power over the purse may in fact, 
be regarded as the most complete and effectual weapon, with 
which any constitution can arm the immediate representatives of 
the people for obtaining a redress of every grievance, and for carry^ 
ing into effect every just and salutary measure. 

But will not the house of representatives be as much interested 
as the senate, in maintaining the government in its proper func- 
tions'; and will they not therefore be unwilling to stake its exist- 
ence or its reputation on the pliancy of the senate ? Or if such a 
trial of firmness between the two branches were hazarded, would 
not the one be as likely first to yield as the other ? These ques- 
tions will create no difficulty with those who reflect that in all 
cases, the smaller the number, and the more permanent and con- 
spicuous the station, of men in power, the stronger must be the 
interest which they will individually feel in whatever concerns the 
government. Those, who represent the dignity of their country in 
the eyes of other nations, will be particularly sensible to every 
prospect of public danger, or of a dishonorable stagnation in pub- 
lic affairs. To those causes, we are to ascribe the continual tri- 
umph of the British house of commons over the other branches of 
the government, whenever the engine of a money bill has been 
employed. An absolute inflexibility on the side of the latter, al- 
though it could not have failed to involve every department of 
the state in the general confusion, has neither been apprehended, 
nor experienced. The utmost degree of firmness that can be 
displayed by the federal senate or president, will not be more 
than equal to a resistance, in which they will be supported by 
constitutional and patriotic principles. 

In this review of the constitution of the house of representa- 
tives, I have passed over the ciicumstance of economy, which, in 
the present state of affairs, might have had some effect in lessening 
the temporary number of representatives ; and a disregard of which 
would probably -have been as rich a theme of declamation against 
the constitution, as has been furnished by the smallness of the 
number proposed. I omit also any remarks on the difficulty which 
might be found, under present circumstances, in engaging in the 
federal service a large number of such characters as the people will 
probably elect. One observation, however, I must be permitted to 
add on this subject, as claiming, in my judgment, a very serious at- 
tention. It is, that in all legislative assemblies, the greater the 
number composing them may be, the fewer will be the men who 
will in fact direct their proceedings. In the first place, the more 
numerous any assembly may be, of whatever characters composed, 
the greater is known to be the ascendancy of passion over reason. 



THE FEDERALIST, 271 

111 the next place, the larger the number, the greater will be the pro- 
portion of members of limited information and of weak capacities. 
Now, it is precisely on characters of" this description, that the elo- 
quence and address of the few are known to act with all their 
force. In the ancient republics, where the whole bod3^ of the 
y^eople assembled in person, a single orator, or an artful statesman 
was geuerally seen to rule with as complete a sway, as if a scep- 
tre had been placed in his single hands. On the same principle, 
the more multitudinous a representative assembly may be rendered 
the more it will partake of the infirmities incident to collective 
meetings of the people. Ignorance will be the dupe of cunning ; 
and passion the slave of sophistry and declamation. The people 
can never err more than in supposing, that by multiplying their 
representatives beyond a certain limit, they strengthen the barrier 
against the government of a few. Experience will forever admon- 
ish them, that on the contrary, after securing a siijicient number 
for the purposes of safety, of local information, and of diffusive 
sympathy with the whole society, they will counteract their own 
views, by every addition to their representatives. The counte- 
nance of the government may become more democratic ; but the 
soul that animates it will be more oligarchic. The machine will 
be enlarged, but the fewer, and often the more secret will be the 
springs by which its motions are directed. 

As connected with the objection against the number of repre- 
sentatives, may properly be here noticed, that which has been sug= 
gested against the number made competent for legislative business. 
It has been said, that more than a majority ought to have been 
required for a quorum ; and -in particular cases, if not in all, more 
than a majority of a quorum for a decision. 

That some advantages might have resulted from such a precau- 
tion cannot be denied. It might have been an additional shield to 
some particular interests, and another obstacle generally to hasty 
and partial measures. But these considerations are outweighed by 
the inconveniences in the opposite scale. In all cases where jus- 
tice or the general good might require new laws to be passed, or 
active measures to be pursued, the fundamental principle of free 
government would be reversed. It would be no longer the major- 
ity. that would rule ; the power would be transferred to the minor- 
ity. Were the defensive privilege limited to particular cases, an 
interested minority might take advantage of it to screen them- 
selves from equitable sacrifices to the general weal, or in partic- 
ular emergencies, to extort unreasonable indulgences. Lastly, it 
would facilitate and foster the baneful practice of secessions ; a 
practice which has shown itself even in states where a majority only 
is required ; a practice subversive of all the principles of order and 
regular government ; a practice which leads more directly to pub- 
lic convulsions, and the ruin of popular governments, than any 
other which has yet been displayed among us. PUBLIUS. 



272 THE FEDERALIST. 

I^TXJ:]^vd:BEI^ ni.12^- 

BY ALEXANDER HAMILTON. 
CONCERNING THE REGULATION OP ELECTIONS. 

The natural order of the subject leads us to consider, in this 
place, that provision of the constitution which authorizes the na- 
tional legislature to regulate, in the last resort, the election of its 
own members. 

It is in these words : " The times, places and marine?' of hold- 
" ing elections for senators and representatives, shall be prescribed 
" in each state by the legislature thereof ; but the congress may, 
" at any time, by law, make or alter such regulations, except as 
" io places of choosing senators."* This provision has not only 
been declaimed against by those who condemn the constitution in 
the gross ; but it has been censured by those who have objected 
with less latitude, and greater moderation ; and, in one instance, 
it has been thought exceptionable by a gentleman who has de- 
clared himself the advocate of every other part of the system. 

I am greatly mistaken, notwithstanding, if there be any article 
in the whole plan more completely defensible than this. Its pro- 
priety rests upon the evidence of this plain proposition, that every 
government ought to contain i?i itself the means of its own pre- 
servation. Every just reasoner will, at first sight, approve an ad- 
herence to this rule in the work of the convention ; and will dis- 
approve every deviation from it, which may not appear to have 
been dictated by the necessity of incorporating into the work 
some particular ingredient, with which a rigid conformity to the 
rule was incompatible. Even in this case, though he may ac- 
quiesce in the necessity, yet he will not cease to regard a depart- 
ure from so ^fundamental a principle, as a portion of imperfection 
in the svstem which may prove the seed of future weakness, and 
perhaps anarchy. 

It will not be alleged, that an election law could have been fram- 
ed and inserted in the constitution, which would have been appli- 
cable to every probable change in the situation of the country ; 
and it will, therefore, not be denied, that a discretionary power 
over elections ought to exist somewhere. It will, I presume, be as 
readily conceded, that there were only three ways in which this 
power could have been reasonably organized ; that it must either 
have been lodged wholly in the national legislature, or wholly in 
the state legislatures, or primarily in the latter, and ultimately in 
the former. The last mode has, with reason, been preferred by the 
convention. They have submitted the regulation of elections for 
the federal government, in the first instance, to the local adniinis- 

* 1st clause, 4th Section of the 1st Article. 



THE FEDERALIST. 273 

trations; which, in ordinary cases, and when no improper views 
prevail, may be both more convenient and more satisfactory ; but 
they have reserved to the national authority a right to interpose, 
whenever extraordinary circumstances might render that interpo- 
sition necessary to its safety. 

Nothing can be more evident, than that an exclusive power of 
regulating elections for the national government, in the hands of 
the state legislatures, would leave the existence of the union en- 
tirely at their mercy. They could at any moment annihilate it, 
by neglecting to provide for the choice of persons to administer 
its affairs. It is to little purpose to say, that a neglect or omission 
of this kind would not be likely to take place. The constitution- 
al possibility of the thing, without an equivalent for the risk, is 
an unanswerable objection. Nor has any satisfactory reason. been 
yet assigned {{ft incurring that risk.. The extravagant surmises of 
a distempered jealousy, can never be dignified with that charac- 
ter. If we are ip a humor to presume the abuses of power, it is 
as fair to presume them on the part of the state governments, as 
on the part of the general government. And as it is more consonant 
to the rules of a just theory, to entrust the union with the care of 
its own existence, than to transfer that care to any other hands 
if abuses of power are to be hazarded on the one side or on the 
other, it is more rational to hazard them where the power would 
naturally be placed, than where it would unnaturally be placed. 

Suppose an article had been introduced into the constitution,\ 
empowering the United States to regulate the elections for the \ 
particular states, would any man have hesitated to condemn it, both 
as an unwarrantable transposition of power, and as a premeditated 
engine for the destruction of the state governments ? The viola- 
tion of principle, in this case, would have required no comment ; 
and, to an unbiassed observer, it will not be less apparent in the 
project of subjecting the existence of the national government, in 
a similar respect, to the pleasure of the state governments. ^SiTv 
impartial vigw of the matter cannot fail to result in a conviction, I 
that each, as far as possible, ought to depend on itself for its own/ 
preservation. —''" 

As an objection to this position, it may be remarked, that the 
constitution of the national senate would involve, in its full extent, 
the danger which it is suggested might flow from an exclusive 
power in the state legislatures to regulate the federal elections. It , 
may be alleged, that by declining the appointment of senators, 
they might at any time give a fatal blow to the union ; and from 
this it may be inferred, that as its existence would be thus rendered 
dependent upon them in so essential a point, there can be no ob- 
jection to entrusting them with it, in the particular case under con- ' 
sideration. The interest of each state, it may be added, to raain- 
. 35 



274 THE FEDERALIST. 

tain its representation in the national councils, would be a com- 
plete security against an abuse of the trust. 

This argument, though specious, will not, upon examination, be 
found solid. It is certainly true, that the state legislatures, by for- 
bearing the appointment of senators, may destroy the national 
government. But it will not f(>l!ow, that because they have the 
power to do this in one instance, they ought to have it in every 
other. There are cases in which the pernicious tendency of such 
a power may be far more decisive, without any motive to recom- 
mend their admission into the system, equally cogent w'ith that 
which must have regulated the conduct of the convention, in re- 
spect to the formation of the senate. So far as that mode of for- 
mation may expose the union to the possibility of injury from the 
state legislatures, it is an evil ; but it is an evil *vhich could not 
have been avoided without excluding the states, in their political 
capacities, wholly from a place in the organization of the national 
government. If this had been done, it would doubtless have been 
interpreted into an entire dereliction of the federal principle ; and 
would certainly have deprived the state governments of that abso- 
lute safeguard, which they will enjoy under this provision. But 
however wise it may have been, to have submitted in this instance 
to an inconvenience, for the attainment of a necessary advantage 
or a greater good, no inference can be drawn from thence to favor 
an accumulation of the evil, where no necessity urges, nor any 
greater good invites. 

It may also be easily discerned, that the national government 
would run a much greater risk, from a power in the state legisla- 
tures over the elections of its house of representatives, than from 
their power of appointing the members of its senate. The sena- 
tors are to be chosen for the period of six years ; there is to be a 
rotation, by which the seats of a third part of them are to be va- 
cated, and replenished every tw^o years ; and no state is to be en- 
titled to moH! than two senators : a quorum of the body, is to con- 
sist of sixteen members. The joint result of these circumstances 
would be, that a temporary combination of a few states, to inter- 
mit the appointment of senators, could neither annul the existerjce, 
nor impair the activity of the body ; and it is not from a general 
and permanent combination of the states, that we can have any 
thing to fear. The first might proceed-from sinister designs in the 
leading members of a few of the state legislatures : the last would 
suppose a fixed and rooted disaffection in the great body of the 
people ; which will, either never exist at all, or will in all proba- 
bility, proceed from an experience of the inaptitude of the gen- 
eral government to the advancement of their happiness j in which 
event, no good citizen could desire ils continuance. 

But with regard to the federal house of repre^sentatives, there is 
intended to be a general election of members once in two years. 



THE FEDERALIST. 275 

If the state legislatures were to be invested with an exclusive 
power of regulating these elections, every period of making them 
would be a delicate crisis in the national situation ; which might - 
issue in a dissolution of the union, if the leaders of a few of the 
most important states should have entered into a previous con- 
spiracy to prevent an election. 

I shall not deny, that there is a degree of weight in the observa- 
tion, that the interest of each state, to be represented in the fede- 
ral councils, will be a security against the abuse of a power over 
its elections in the hands of the'state legislatures. But the security 
will not be considered as complete, by those who attend to the 
force of an obvious distinction between the interests of the people 
in the public felicity, and the interest of their local rulers in the 
power and consequence of their offices. The people of America 
may be warmly attached to the government of the union, at times 
when the particular rulers of particular states, stimulated by the 
natural rivalship of power, and by the hopes of personal aggran- 
dizement, and supported by a strong faction in each of those states, 
may be in a very opposite temper. This diversity of sentiment 
between a majority of the people, and the individuals who have 
the greatest credit in their councils, is exemplified in some of the 
states at the present moment, on the present question. The 
scheme of separate confederacies, which will always multiply the 
chances of ambition, will be a never failing bait to all such influ- 
ential characters in the state administration, as are capable of pre- 
ferring their own emolument and advancement to the public weal. 
With so effectual a weapon in their hands as the exclusive power 
of regulating elections for the national government, a combination 
of a few such men, in a few of the most considerable states, where 
the temptation will always be the strongest, might accomplish the 
destruction of the union ; by seizing the opportunity of some cas- 
ual dissatisfaction among the people, and which perhaps they 
may themselves have excited, to discontinue the choice of mem- 
bers for the federal house of representatives. It ought never to 
be forgotten, that a firm union of this country, under an effi- 
cient government, will probably be an increasing object of jeal- 
ousy to more than one nation of Europe ; and that enterprises 
to subvert-it will sometimes originate in the intrigues of foreign 
powers, and will seldom fail to be patronized and abetted by some 
of them. Its preservation therefore ought in no case, that can be 
avoided, to be committed to the guardianship of any but those, 
whose situation will uniformly beget an immediate interest in the 
faithful and vigilant performance of the trust. PUBLIUS. 



276 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 

THE SAME SUBJECT CONTINUED. 

We have seen, that an uncontrollable power over the elections 
for the federal governnient could not, without hazard, be commit- 
ted to the state legislatures. Let hs now see, what are the dan- 
gers on the other side : that is, from confiding the ultimate right of 
regulating its own elections to the union itself. It is not pretend- 
ed, that this right would ever be used for the exclusion of any 
state from its share in the representation. The interest of all 
would, in this respect at least, be the security of all. But it is al- 
leged, that it might be employed in such a manner as to promote 
the election of some favorite class of men in exclusion of others ; 
by confining the places of election to particular districts, and ren- 
dering it impracticable for the citizens at large to partake in the 
choice. Of all chimerical suppositions, this seems to be the most 
chimerical. On the one hand, no rational calculation of probabili- 
ties would lead us to imagine that the disposition, which a conduct 
so violent and extraordinary would imply, could ever find its way 
into the national councils ; and on the other hand, it may be con- 
cluded with certainty, that if so improper a spirit should ever gain 
admittance into them, it would display itself in a form altogether 
different and far more decisive, 

TJie improbability of the attempt may be satisfactorily inferred 
from this single reflection, that it could never be made without 
causing an immediate revolt of the great body of the people, 
headed and directed by the state governments. It is not difficult 
to conceive that this characteristic right of freedom may, in cer- 
tain turbulent and factious seasons, be violated, in respect to a par- 
ticular class of citizens, by a victorious majority ; but that so fun- 
damental a privilege, in a country situated and enlightened as this 
is, should be invaded to the prejudice of the great mass of the 
people, by the deliberate policy of the government, without occa- 
sioning a popular revolution, is altogether inconceivable and in- 
credible. 

In addition to this general reflection, there are considerations of 
a more precise nature, which forbid all apprehension on the sub- 
ject. The dissimilarity in the ingredients, which will compose the 
national government, and still more in the ma:nner in which they 
will be brought into action in its various branches, must form a 
powerful obstacle to a concert of views, in any partial scheme of 
elections. There is sufficient diversity in the state of property, in 
the genius, manners, and habits of the people of the different parts 
of the union, to occasion a material diversity of disposition in their 



THE FEDERALIST. 277 

representatives towards the different ranks and conditions in socie- 
ty. And though an intimate interconrse under the same govern- 
ment will promote a gradual assimilation of temper and senti- 
ment, yet there are causes, as well physical as moral, which may, 
in a greater or less degree, permanently nourish different propensi- 
ties and inclinations in this particular. But the circumstance 
which will be likely to have the greatest influence in the matter, 
will be the dissimilar modes of constituting the several component 
parts of the government. The house of representatives being to 
be elected immediately by the people ; the senate by the state 
legislatures ; the president by electors chosen for that purpose by 
the people ; there would be little probability of a common interest 
to cement these different branches in a predilection for any par- 
ticular class of electors. 

As to the senate, it is impossible that any regulation of •' time 
and manner," which is all that is proposed to be submitted to 
the national government in respect to that body, can affect the 
spirit which will direct the choice of its members. The collec- 
tive sense of the state legislatures can never be influenced by ex- 
traneous circumstances of that sort ; a consideration which alone 
ought to satisfy us, that the discrimination apprehended would 
never be attempted. For what inducement could the senate have, 
to concur in a preference in which itself would not be included ? 
Or to what purpose would it be established, in reference to one 
branch of the legislature, if it could not be extended to the 
other ? The composition of the one would in this case counteract 
that of the other. And we can never suppose that it would em- 
brace the appointments to the senate, unless we can at the same 
time suppose the voluntary cooperation of the state legislatures. 
If we make the latter supposition, it then becomes immaterial, 
where the power in question is placed, whether in their hands, or 
in those of the union. 

But what is to be the object of this capricious partiality in the 
national councils ? Is it to be exercised in a discrimination be- 
tween the different departments of industry, or between the differ- 
ent kinds of property, or between the different degrees of proper- 
ty ? Will it lean in favor of the landed interest or the moneyed 
interest, or the mercantile interest, or the manufacturing interest ? 
Or, to speak in the fashionable language of the adversaries to the 
constitution, will it court the elevation of "the wealthy and the 
well-born," to the exclusion and debasement of all the rest of the 
society ? 

If this partiality is to be exerted in favor of those who are con- 
cerned in any particular description of industry or property, I pre- 
sume it will readily be admitted, that the competition for it will lie 
between landed men and merchants. And I scruple not to affirm, 
that it is infinitely less likely that either of them should gain an 



278 THE FEDERALIST. 

ascendant in the national councils, than that the one or the other 
of them should predominate in all the local councils. The in- 
ference will be, that a conduct tending to give an undue prefer- 
ence to either is much less to be dreaded from the former, than 
from the latter. 

The several ystates are in various degrees addicted to agriculture 
and commerce. In most, if not all of them, the first is predomi- 
nant. In a few of them, however, the latter nearly divides its 
empire ; and in most of them has a considerable share of in- 
fluence. In proportion as either prevails, it will be conveyed into 
the national representation : and for the very reason, that this will 
be an emanation from a greater variety of interests, and in much 
more various proportions, than are to be found in any single state, 
it will be much less apt to espouse either of them with a decided 
partiality, than the representation of any single state. 

In a country consisting chiefly of the cultivators of land, where 
the rules of an equal representation obtain, the landed interest 
must, upon the whole, preponderate in the government. As long 
as this interest prevails in most of the state legislatures, so long it 
must maintain a correspondent superiority in the national senate, 
which will generally be a faithful copy of the majorities of those 
assemblies. It cannot therefore be presumed, that a sacrifice of 
the landed to the mercantile class will ever be a favorite object of 
this branch of the federal legislature. In applying thus particu- 
larly to the senate a general observation suggested by the situa- 
tion of the country, I am governed by the consideration, that the 
credulous votaries of state power cannot, upon their own princi- 
ples, suspect, that the state legislatures would be warped from 
their duty by any external influence. But as in reality the same 
situation must have the same effect, in the primitive composition 
at least of the federal house of representatives ; an improper bias 
towards the mercantile class, is as little to be expected from this 
quarter as from the other. 

In order, perhaps, to give countenance to the objection at any 
rate, it may be asked, is there not danger of an opposite bias in 
the national government, which may produce an endeavor to secure 
a monopoly of the federal administration to the landed class? As 
there is little likelihood, that the supposition of such a bias will 
have any terrors for those who would be immediately injured by it, 
a labored answer to this question will be dispensed with. It will 
be sufficient to remark, first, that for the reasons elsewhere assign- 
ed, it is less likely that any decided partiality should prevail in the 
councils of the union, than in those of any of its members : sec- 
ondly, that there would be no temptation to violate the constitu- 
tion in favor of the landed class, because that class would, in the 
natural course of things, enjoy as great a preponderancy as itself 
could desire : and, thirdly, that men accustomed to investigate the 



THE FEDERALIST. 279 

sources of public prosperity, upon a large scale, must be too well 
convinced of the utility of commerce to be inclined to inflict up- 
on it so deep a wound, as would be occasioned by the entire ex- 
clusion of those who would best understand its interests, from a 
share in the management of them. The importance of commerce, 
in the view of revenue alone, must effectually guard it against 
the enmity of a body which would be continually importuned 
in its favor, by the urgent calls of public necessity. 

I the rather consult brevity, in discussing the' probability of a 
preference founded upon a discrimination between the different 
kinds of industry and property, because, as far as 1 understand the 
meaning of the objectors, they contemplate a discrimination of 
another kind. They appear to have in view, as the objects of the 
preference with which they endeavor to alarm us, those whom 
they desijj^nate by the description of "the wealthy and the well- 
born." These, it seems, are to be exalted to an odious preemi- 
nence over the rest of their fellow-citizens. At one time, how- 
ever, their elevation is to be a necessary consequence of the 
smallness of the representative body: at another lime, it is to be 
effected by depriving the people at large of the opportunity of 
exercising their right of suffrage in the choice of that body. 

But upon what principle is the discrimination of the places of 
election to be made, in order to answer the purpose of the medi- 
tated preference? Are the wealthy and the well-born, as they are 
called, confined to particular spots in the several states ? Have 
they, by some miraculous instinct or foresight, set apart in each of 
them a common place of residence ? Are they only to be met with 
in the towns and the cities? Or are they, on the contrary, scat- 
tered over the face of the country, as avarice or chance may have 
happened to cast their own lot, or that of their predecessors ? If the 
latter is the case, (as every intelligent man knows it to be,*) is 
it not evident that the policy of confining the places of elections 
to particular districts, would be as subversive of its own aim, as it 
would be exceptionable on every other account ? The truth is, 
that there is no method of securing to the rich the preference ap- 
prehended, but by prescribing qualifications of property either for 
those who may elect, or be elected. But this forms no part of the 
power to be conferred upon the national government. Its author- 
ity would be expressly restricted to the regulation of the tinies, 
the places, and the manner of elections. The qualifications of 
the persons who may choose, or be chosen, as has been remark- 
ed upon another occasion, are defined and fixed in the constitu- 
tion, and are unalterable by the legislature. 

Let it however be admitted, for argument sake, that the expedi- 
ent suggested might be successful ; and let it at the same time be 
equally taken for granted, that all the scruples which a sense of 

* Particularly in the southern states and in this state. 



280 THE FEDERALIST. 

duty, or an apprehension of the danger of the experiment might 
inspire, were overcome in the breasts of the national rulers ; still 
I imagine, it will hardly be pretended, that they could ever hope 
to carry such an enterprise into execution, without the aid of a 
military force sufficient to subdue the resistance of the great body 
of the people. The improbability of the existence of a force equal 
to that object, has been discussed and demonstrated in different 
parts of these papers ; but that the futility of the objection under 
consideration may appear in the strongest light, it shall be conced- 
ed for a moment, that such a force might exist; and the national 
government shall be supposed to be in the actual possession of it. 
What will be the conclusion ? With a disposition to invade the 
essential rights of the community, and with the means of gratify- 
ing that disposition, is it presumable that the persons who were ac- 
tuated by it would amuse themselves in the ridiculous task of fab- 
ricating election laws for securing a preference to a favorite class of 
men ? Would they not be likely to prefer a conduct better adapt- 
ed to their own immediate aggrandizement ? Would th^^ not rather 
boldly resolve to perpetuate themselves in office by one decisive 
act of usurpation, than to trust to precarious expedients which, in 
spite of all the precautions that might accompany them, might ter- 
mitjate in the dismission, disgrace, and ruin of their authors ? 
Would they not fear, that citizens, not less tenacious than con- 
scious of their rights, would flock from the remotest extremes of 
their respective states to the places of election, to overthrow theif 
tyrants, and to substitute men who would be disposed to avenge 
the violated majesty of the people. PUBLIUS. 



BY ALEXANDER HAMILTON. 

THE SAME SUBJECT CONTINUED AND CONCLUDED. 

The more candid opposers of the provision contained in the 
plan of the convention, respecting elections, when pressed in ar- 
gument, will sometimes concede the propriety of it ; with this qual- 
ification, however, that it ought to have been accompanied with a 
declaration, that all elections should be held in the counties where 
the electors reside. This, say they, was a necessary precaution 
against an abuse of the power, A declaration of this nature would 
certainly have been harmless ; so far as it would have had the effect 
of quieting apprehensions, it might not have been undesirable. 
But it would, in fact, have afforded little or no additional security 
against the danger apprehended ; and the want of it will never be 



THE FEDERALIST. 281 

considered, by an impartial and judicious examiner, as a serious, 
still less as an insuperable objection to the plan. The different 
views taken of the subject in the two preceding papers must be 
sufficient to satisfy all dispassionate and discerning men, that if 
the public liberty should ever be the .victim of the ambition of 
the national rulers, the power under examination, at least, will be 
guiltless of the sacrifice. 

If those who are inclined to consult their jealousy only, would 
exercise it in a careful inspection of the several state constitutions, 
they would find little less room for disquietude and alarm, from the 
latitude which most of thetji allow in respect to elections, than 
from that which is proposed to be allowed to the national govern- 
ment in the same respect. A review of their situation, in this par- 
ticular, would tend greatly to remove any ill impressions which 
may remain in regard to this matter. But as that review would 
lead into long and tedious details, I shall content myself with the 
single example of the state in which I write. The constitution of 
New York makes no other provision for locality of elections, than 
that the members of the assembly shall be elected in the counties ; 
those of the senate, in the great districts into which the state is or 
may be divided: these at present are four in number, and compre- 
hend each from two to six counties. It may readily be perceived, 
that it would not be more difficult for the legislature of New York 
to defeat the suffrages of the citizens of New York, by confining 
elections to particular places, than for the legislature of the Unit- 
ed States to defeat the suffrages of the citizens of the union, by 
the like expedient. Suppose, for instance, the city of Albany was 
to be appointed the sole place of election for the county and dis- 
trict of which it is a part, would not the inhabitants of that city 
speedily become the only electors of the members both of the 
senate and assembly for that county and district? Can we imag- 
ine, that the electors who reside in the remote subdivisions of the 
counties of Albany, Saratoga, Cambridge, &,c., or in any part of 
the county of Montgomery, would take the trouble to come to the 
city of Albany, to give their votes for members of the assembly or 
senate sooner than they would repair to the city of New York to 
participate in the choice of the members to the federal house of 
representatives? The alarming indifference discoverable in the 
exercise of so invaluable a privilege under the existing laws, which 
afford every facility to it, furnishes a ready ansv/er to this question. 
And, abstracted from any experience on the subject, we can be at 
no loss to determine, that when the place of election is at an in- 
convenient distance from the elector, the effect upon his conduct 
will be the same, whether that distance be twenty miles, or twen- 
ty thousand miles. Hence it must appear, that objections to the 
particular modification of the federal pow^er of regulating elec- 
tions, will in substance, apply with equal force to the modification 

36 



282 . THE FEDERALIST, 

of the like power in the constitution of this state ; and for this reas- 
on it will be impossible to acqnit the one, and to condemn the 
other. A similar comparison wonld lead to the same conclnsion, 
in respect to the constitutions of most of the other states. 

If it should be said, that defects in the state constitutions fur- 
Fiish no apology to those which are to be found in the plan pro- 
posed ; I answer, that as the former have never been thought 
chargeable with inattention to the security of liberty, where the 
imputations thrown on the latter can be shown to be applicable 
to them also, the presumption is, that they are rather the cavilling 
refinements of a predetermined oppasition, than the well founded 
inferences of a candid research after truth. To those who are 
disposed to consider, as innocent omissions in the state constitu- 
tions, what they regard as unpardonable blemishes in the plan of 
the convention, nothing can be said ; or at most, they can only 
be asked to assign some substantial reason why the representa- 
tives of the people, in a single state, should be more impregnable 
to the lust of power, or other sinister motives, than the represent- 
atives of the people of the United States ? If they cannot do 
this, they ought at least to prove to us that it is easier to subvert 
the liberties of three millions of people, with the advantage of 
local governments to head their opposition, than of two hundred 
thousand people who are destitute of that advantage. And in re- 
lation- to the point immediately under consideration, they ought 
to convince us that it is less probable that a predominant fac- 
tion in a single state, should, in order to maintain its superiority^ 
incline to a preference of a particular class of electors, than that 
a similar spirit should take possession of the representatives of 
thirteen states, spread over a vast region, and in several respects 
distinguishable from each other by a diversity of local circiim- 
stances, prejudices and interests. 

Hitherto my observations have only aimed at a vindication of 
the provision in question, on the ground of theoretic propriety, on 
that of the danger of placing the power elsewhere, and on that* of 
the safety of placing it in the manner proposed. But there remains 
to be mentioned a positive advantage, which will accrue from this 
disposition, and which could not as well have been obtained fiom 
any other : I allude to the circumstance of uniformity, in the time 
of elections for the federal house of representatives. It is more 
than possible, that this uniformity may be found by experience to 
be of great importance to the public welfare ; both as a security 
against the perpetuation of the same spirit in the body, and as a 
cure for the diseases of faction. If each state may choose its own 
time of election, it is possible there may be, at least, as r»any dif- 
ferent periods as there are months in the year. The times of elec- 
tion in the several states, as they are now established for local pur- 
poses, vary between extremes as wide as March and November. 



THE FEDERALIST. 283 

The consequence of this diversity would be, that there could never 
happen a total dissolution or renovation of the body at one time. 
If an improper spirit of any kind should hap}>en to prevail in it, 
that spirit would be apt to infuse itself into the new members, as 
they come forward in succession. The mass would be likely to 
remain nearly the same ; assimilating constantly to itself its grad- 
ual accretions. There is a contagion in example, which few 
men have sufficient force of mind to resist. I am inclined to 
ihink, that treble the duration in office, with the condition of a 
total dissolution of the body at the same time, might be less 
formidable to liberty than one third of that duration subject to 
gradual and successive alterations. 

Uniformity in the time of elections, seems not less requisite for 
executing the idea of a regular rotation in the senate; and for con- 
veniently assembling the legislature at a stated period in each yean 

It may be asked, why then could not a time have been fixed in 
the constitution ? As the most zealous adversaries of the plan of 
the convention in this state, are, in general, not less zealous ad- 
mirers of the constitution of the state, the question may be retort- 
ed, and it may be asked, why was not a time for the like purpose 
fixed in the constitution of this state ? No better answer can be 
given than that it was a matter which might safely be entrusted to 
legislative discretion ; and that if a time had been appointed, it 
might, upon experiment, have been found less convenient thau 
some other time. The same answer may be given to the question 
put on the other side. And it may be added that the supposed 
danger of a gradual change being merely speculative, it would 
have been hardly advisable upon that specislation to establish, as a 
fundamental point, what would deprive several states of the con- 
venience of having the elections for their own governments, and 
for the national government, at the same epoch. PUBLIUS. 



BY JAMES MADISON. 



CONCERNINa THE CONSTITUTION OP THE SENATE, WITH REGARD TO 
THE QUALIFICATIONS OF THE MEMBERS ; THE MANNER OF APPOINT- 
ING THEM ; THE EQUALITY OP REPRESENTATION ; THE NUMBER OP 
THE SENATORS; AND THE DURATION OF THEIR APPOINTMENTS. 

• Having examined the constitution of the house of representa- 
tives, and answered such of the objections against it as seemed to 
merit notice:, I enter noxt on the examination of the senate. 
The heads, under which this member of the government may 



284 THE FEDERALIST. 

be considered, are, 1. The qualifications of senators; 2. The ap- 
pointment of them by the state legislatures ; 3. The equality of 
representation in the senate ; 4. The number of senators, and 
the term for which they are to be elected ; 5. The powers vested 
in the senate. 

1. The qualifications proposed for senators, as distinguished from 
those of representatives, consist in a more advanced age, and a 
longer period of citizenship. A senator must be thirty years of 
age at least ; as a representative must be twenty-five. And the 
former must have been a citizen nine years ; as seven years are re- 
quired for the latter. The propriety of these distinctions is ex- 
plained by the nature of the senatorial trust ; which, requiring 
greater extent of information and stability of character, requires, 
at the same time, that the senator should have reached a period of 
life most likely to supply these advantages; and which, participat- 
ing immediately in transactions with foreign nations, ought to be 
exercised by none who are not thoroughly weaned from the pre- 
possessions and habits incident to foreign birth and education. 
The term of nine years appears to be a prudent mediocrity betw:een 
a total exclusion of adopted citizens, whose merit and talents may 
claim a share in the public confidence, and an indiscriminate and 
hasty admission of them, whicli might create a channel for for- 
eign influence on the national councils. 

2. It is equally unnecessary to dilate on the appointment of sen- 
ators by the state legislatures. Among the various modes which 
might have been devised for constituting this branch of the gov- 
ernment, that which has been proposed by the convention is pro- 
bably the most congenial with the public opinion. It is recom- 
mended by the double advantage of favoring a select appointment, 
and of giving to the state governments such an agency in the for-- 
mation of the federal government, as must secure the authority 
of the former, and may form a convenient link between the two 

^systems, 

3. The equality of representation in the senate is another point, 
which, being evidently the result of compromise between the op- 
posite pretensions t)f the large and the small states, does not call 
for much discussion. If indeed it be right, that among a people 
thoroughly incorporated into one nation, every district ought to 
have a proportional sljare in the government ; and that among in- 
dependent and sovereign states, bound together by a simple league, 
the parties, however unequal in size, ought to have an equal share 
in the common councils; it does not appear to be without some 
reason, that in a compound republic, partaking both of the nation- 
al and federal character, the government ought to be founded on St 
mixture of the principles of proportional and equal representation. 
But it is superfluous to try, by the standard of theory, a part of 
the constitution which is allowed on all hands to be the result, not 



THE FEDERALIST. 285 

of theory, but " of a spirit of amity, and that mutual deference 
'•' and concession which the peculiarity of our poHtical situation 
"rendered indispensable." A common government, with powers 
equal to its objects, is called for by the voice, and still more loudly 
by the political situation, of America. A government, founded on 
principles more consonant to the wishes of the larger states, is not 
likely to be obtained from the smaller states. The only option, 
then, for the former, lies between the proposed government, and 
a government still more objectionable. Under this alternative, 
the advice of prudence must be, to embrace the lesser evil ; and, 
instead of indulging a fruitless anticipation of the possible mis- 
chiefs which may ensue, to contemplate rather the advantageous 
consequences which may qualify the sacrifice. 

In this spirit it may be remarked, that the equal vote allowed to 
each state, is at once a constitutional recognition of the portion of 
sovereignty remaining in the individual states, and an instrument 
for preserving that residuary sovereignty. So far the equality 
ought to be no less acceptable to the large than to the small states ; 
since they are not less solicitous to guard, by every possible expe- 
dient, against an improper consolidation of the states into one sim- 
ple republic. 

Another advantage accruing from this ingredient in the constitu- 
tion of the senate is, the additional impediment it must prove 
against improper acts of legislation. No law or resolution can now 
be passed without the concurrence, first, of a majority of the people, 
and, then, of a majority of the states. It must be acknowledged 
that this complicated check on legislation may, in some instances, 
be injurious as well as beneficial ; and that the peculiar defence 
which it involves in favor of the smaller states, would be more ra- 
tional, if any interests common to them, and distinct from those of 
the other states, would otherwise be exposed to peculiar danger. 
But as the larger states will always be able, by their power over 
the supplies, to defeat unreasonable exertions of this prerogative of 
the lesser states; and as the facility and ^xcess of law-making 
seeni to be the diseases to which our governments are most liable, 
it is not impossible that this pairr of fhe constitution may be more 
convenient in practice, than it appears to many in contemplation. 

4. The number of senators, and the duration of their appoint- 
ment, come next to be considered. In order to form an accurate 
judgment on both these points, it will be proper to inquire into the 
purposes wMch are to be answered by a senate ; and in order to 
ascertain these, it will be necessary to review the inconveniences 
which a republic must suffer from the want of such an institution. 

First. It is a misfortune incident to republican government, 
though in a less degree thai^ to other governments, that those who 
administer it may forget their obligations to their constituents, and 
prove unfaithful to their important trust. In this point of view, a 



286 THE FEDERALIST. 

senate, as a second branch of the legislative assembly, distinct 
from and dividing the power with, a first, must be in all cases a 
salutary check on the government. It doubles the security to 
the people, by requiring the concurrence of two distinct bodies in 
schemes of usurpation or perfidy, where the ambition or corrup- 
tion of one would otherwise be sufficient. This is a precaution 
founded on such clear principles, and now so well understood in 
the United States, that it would be more than superfluous to en- 
large on it. 1 will barely remark, that as the improbability of 
sinister combinations will be in proportion to the dissimilarity in 
the genius of the two bodies, it must be politic to distinguish 
them from each other by every circumstance which will consist 
with a due harmony in all proper measures, and with the genuine 
principles of republican government. 

Second. The necessity of a senate is not less indicated by the 
propensity of all single and numerous assemblies, to yield to the 
impulse of sudden and violent passions, and to be seduced by fac- 
tious leaders into intemperate and pernicious resolutions. Exam- 
ples on this subject might be cited without number; and from 
proceedings within the United States, as well as from the history 
of other nations. But a position that will not be contradicted, 
need not be proved. All that need be remarked, is, that a body 
which is to correct this infirmity, ought itself to be free from it, 
and consequently ought to be less ninnerous. It ought, moreover, 
to possess great firmness, and consequently ought to hold its au- 
thority by a tenure of considerable duration. 

Third. Another defect to be supplied by a senate lies in a 
want of due acquaintance with the objects and principles of legis- 
lation. It is not possible that an assembly of men called for the 
most part from pursuits of a private nature, continued in appoint.- 
ment for a short time, and led by no permanent motive to devote 
the intervals of public occupation to a study of the laws, the afi"airs, 
and the comprehensive interest of their country, should, if left 
wholly to themselves, escape a variety of important errors in the 
exercise of their legislative trust. It may be affirmed, on the best 
grounds, that no small share of the present embarrassments of 
America is to be charged on the blunders of our governments : 
and that these have proceeded from the heads rather than the 
hearts of most of the authors of them. What indeed are all the 
repealing, explaining, and amending laws, which fill and disgrace 
our voluminous codes, but so many monuments of deficient wis- 
dom, so many impeachments exhibited by each succeeding, 
against each preceding session ; so many admonitions to the peo- 
ple, of the value of those aids which may be expected from a 
well-conslituted senate. ^ 

A good government implies two things: first, fidelity to the ob- 
ject of government, which is the happiness of the people ; second- 



THE FEDERALIST. 287 

]y, a knowledge of the means by which that object can be best 
attained. Some governments are deficient in both these qnalities ; 
most governments, are deficient in the first. I scruple not to as- 
sert, that in American governments, too little attention has been 
paid to the last. The federal constitution avoids this error: and 
what merits particular notice, it provides for the last in a mode 
which increases the security for the first. 

Fourth. The mutability in the public councils arising from a 
rapid succession of new members, however qualified they may be, 
points out, in the strongest manner, the necessity of some stable 
institution in the government. Every new election in the states, 
is found to change one half of the representatives, From this 
change of men nuist proceed a change of opinions ; and from a 
change of opinions, a change of measures. But a continual change 
even of good measures is inconsistent with every rule of prudence, 
and every prospect of success. The remark is verified in private 
life, and becomes more just, as well as more important in national^ 
transactions. 

To trace the mischievous effects of a mutable government, 
would fill a volume. I will hint a few only, each of which will 
be perceived to be a source of innumerable others. 

In the first place, it forfeits the respect and confidence of other 
nations, and all the advantages connected with national character. 
An individual who is observed to be inconsistent to his plans, or 
perhaps to carry on his affairs without any plan at all, is marked at 
once, by all prudent people, as a speedy victim, to his own unstead- 
iness and folly. His more friendly neighbors may pity him, but all 
will decline to connect their fortunes with his ; and not a few will 
seize the opportunity of making their fortunes out of his. One 
nation is to another, what one individual is to another; with this 
melancholy distinction perhaps, that the former, with fewer of the 
benevolent emotions than the latter, are under fewer restraints also 
from taking undue advantage from the indiscretions of each other. 
Every nation, consequently, whose affairs betray a want of wis- 
dom and stability, may calculate on every loss which can be 
sustained from the more systematic policy of its wiser neighbors. 
But the best instruction on this subject is unhappily conveyed to 
America by the example of her own situation. She finds that she 
is held in no respect by her friends ; that she is the derision of her 
enemies ; and that she is a prey to every nation which has an interest 
in speculating on her fluctuating councils and embarrassed affairs. 

'I'he internal effects of a mutable policy are still more calamitous. 
It poisons the blessing of liberty itself It will be of little avail 
to the people, that the laws are made by men of their own choice, 
if the laws be so voluminous«that they cannot be read, or so inco- 
herent that they cannot be understood ; if they be repealed or re- 
vised before they are promulged, or undergo such incessant changes 



288 THE FEDERALIST. 

that no man, who knows what the law is to-day, can guess what 
it will be to-morrow. Law is defined to be a rule of action : but 
how can that be a rule, which is Httle known, and less fixed? 

Another effect of public instability is the unreasonable advantage 
it gives to the sagacious, the enterprising, and the moneyed few, 
over the industrious and uninformed mass of the people. Every 
new regulation concerning commerce or revenue, or in any manner 
affecting the value of the different species of property, presents a 
new harvest to those who watch the change and can trace the con- 
sequences ; a harvest, reared not by themselves, but by the toils 
and cares of the great body of their fellow-citizens. This is a 
state of things, .in which it may be said, with some trnth, that 
laws are made for the few, not for the many. 

In another point of view, great injury results from an unstable 
government. The want of confidence in the public councils damps 
every useful undertaking, the success and profit of which may de- 
pend on a continuance of existing arrangements. What prudent 
merchant will hazard his fortimes in any new branch of commerce, 
when he knows not but that his plans may be rendered unlawful 
before they can be executed ? What farmer or manufacturer will 
lay himself out for the encouragement given to any particular cul- 
tivation or establishment, when he can have no assurance that 
his preparatory labors and advances will not render him a victim 
to an inconstant government? In a word, wo great improve*- 
ment or laudable enterprise can go forward, which requires the 
auspices of a steady system of national policy. 

But the most deplorable effect of all, is that diminution of at- 
tachment and reverence, which steals into the hearts of the peo- 
ple, towards a political system which betrays so many marks of 
infirmity, and disappoints so many of their flattering hopes. No 
government, any more than an individual, will long be respected, 
without being truly respectable ; nor be tiuly respectable, with- 
out possessing a certain portion of order and stability. 

PUBLIUS. 



BY JAMES MADISON. 

A FURTHER VIEW OF THE CONSTITUTION OF THE SENATE, IN REGARD 
TO THE DURATION OF THE APPOINTMENT OF ITS MEMBERS. 

A FIFTH desideratum, illustrating the utility of a senate, is the 
want of a due sense of national character. Without a select and 
stable member of the government the esteem of foreign powers 



THE FEDERALIST. 289 

will not only be forfeited by an unenlightened and variable policy, 
proceeding from the causes already mentioned ; but the national 
councils will not possess that sensibility to the opinion of the 
world, which is perhaps not less necessary in order to merit, than 
it is to obtain its respect and cotifidence. 

An attention to the judgment of other nations is important to 
every government, for two reasons ; the one is, that independently 
of the merits of any particular plan or measure, it is desirable, on 
various accounts' th?it it should appear to other nations as the otf- 
spring of a wise and lionorable policy; the second is, that in doubt- 
ful cases, particniarly where the national councils may be warped 
by some strong passion, or momentary interest, the presumed or 
known opinion of the impartial world may be the best guide that 
can be followed. What has not America lost by her want of char- 
acter with foreign nations ; and how many errors and follies would 
she not have avoided, if the justice, and propriety of her measures 
had, in every instance, been previously tried by the light in which 
ihey wonid probably appear to the unbiassed part of mankind ! 

Yet however requisite a sense of national character raaj^ be, it 
is evident that it can never be sufficiently possessed by a numer- 
ous and changeable body. It can only be foimd in a number so 
small that a sensible degree of the praise and blame of public mea- 
sures may be the portion of each individual ; or in an assembly 
so durably invested with public trust, that the pride and conse- 
quence of its members may be sensibly incorporated with the re- 
putation and prosperity of the community. The half yearly rep- 
resentatives of Rhode Island, would probably have been little af- 
fected in their deliberations on the iniquitous measures of that 
state, by arguments drawn from the light in which such measures 
would be viewed by foreign nations, or even by the sister states ; 
whilst it can scarcely l>8 doubted, that if the concurrence of a se- 
lect and stable body had been necessary, a regard to national char- 
acter alone would have prevented the calamities under which that 
misguided people is now laboring. 

I add, as a siivtli delect, the want in some important cases of a 
due responsibility in the government to the people, arising from 
that frequency of elections, which in other cases produces this re- 
spotjsibiiity. The remark will, perhaps, appear not only new, but 
paradoxical. It must nevertheless be acknowledged, when ex- 
plained, to be as .undeniable as it is important. 

Re>;ponsibility, in oi'fJer to be reasonable, must be limited to ob- 
jects within the power of the responsible party ; and in order to 
be effectual, must relate to operations of that power, of which a 
ready and proper judgment can be formed by the constituents. 
The objects of government may be divided into two general classes : 
the one depending on measures which have singly an immediate 
and sensible operation ; the other depending on a succession of 

37 



290 THE FEDERALIST. 

well-chosen and well-connected measures, which have a gradual 
and perhaps unobserved operation. The importance of the latter 
description to the collective and permanent welfare of every coun- 
try, needs no explanation. And yet it is evident, that an assembly 
elected for so short a term as to be unable to provide more than 
one or two links in a chain of measures, on which the general wel- 
fare may essentially depend, ought not to be answerable for the 
final result, any more than a steward or tenant, engaged for one 
year, could be justly made to answer for plans or improvements 
which could not be accomplished in less than half a dozen years. 
Nor is it possible for the people to estimate the share of influence 

. which their annual assemblies may respectively have on events re- 
sulting from the mixed transactions of several years. Tt is suffi- 
ciently difficult, to preserve a personal responsibility in the mem- 
bers of a numerous body, for such acts of the body as have an 
immediate, detached, and palpable operation on its constituents. 

The proper remedy for this defect must be an additional body 
in the legislative department, which having sufficient permanency 
to provide for such objects as require a continued attention, and a 
train of measures, may be justly and effectually answerable for 
the attainment of those objects. 

Thus far I have considered the circumstances which point out 
the necessity of a well-constructed senate, only as they relate to 

JJie_representatives of the people. To a people as little blinded 
by prejudice, or corrupted by flattery, as those whom 1 address, I 
shall not scruple to add, that such an institution may be sometimes 
necessary, as a defence to the people against their own temporary 

i^rrors and delusions. As the cool and deliberate sense of the 
community ought, in all governments, and actually will, in all free 
governments, ultimately prevail over the views of its rulers : so 
there are particular moments in public affairs, when the people, 
stimulated by some irregular passion, or some illicit advantage, or 
misled by the artful misrepresentations of interested men, may call 
for measures which they themselves will afterwards be tlye most 
ready to lament and condemn. In these critical moments, how 
salutary will be the interference of some temperate and respectable 
body of citizens, in order to check the misguided career, and to 
suspend the blow meditated by the people against themselves, un- 
til reason, justice, and truth, can regaiti their authority over the 
public mind ? What bitter anguish would not the people of Ath- 
ens have often escaped, if their government had contained so prov- 
ident a safeguard against the tyranny of their own passions ! 
Popular liberty might then have escaped the indelible reproach of 
decreeing to the same citizens the hemlock on one -day, and stat- 
ues on the next. 

It may be suggested, that a people spread over an extensive re- 
gion cannot, like the crowded inhabitants of a small district, be 



THE FEDERALIST. 291 

subject to the infection of violent passions : or to the danger of 
combining in the pursuit of unjust measures. I am far from deny- 
ing that this is a distinction of peculiar importance. 1 have, on the 
contrary, endeavored in a former paper to show, that it is one of 
the principle recommendations of a confederated repubHc. At 
the same time, this advantage ought not to be considered as super- 
seding the use of auxiliary precautions. It may even be remark- 
ed, that the same extended situation, which will exempt the peo- 
ple of America from some of the dangers incident to lesser repub- 
lics, will expose them to the inconveniency of remaining for a 
longer time, under the influence of those misrepresentations which 
the combined industry of interested men may succeed in distri- 
buting among them. 

It adds no small weight to all these considerations, to recollect, 
that history informs us of no long lived republic, which had not a 
senate. Sparta, Rome and Carthage are, in fact, the only states 
to whom that character can be applied. In each of the tv/o first, 
there was a senate for life. The constitution of the senate in the 
last is less known. Circumstantial evidence makes it probable, 
that it was not different in this particular from the two others It 
is at least certain, that it had some quality or other which render- 
ed it an anchor against popular fluctuations ; and that a smaller 
council, drawn out of the senate, was appointed not only for life, 
but filled up vacancies itself These examples, though as unfit for 
the imitation, as they are repugnant to the genius, of America, are, 
notwithstanding, when compared with the fugitive and turbulent 
existence of other ancient republics, very instructive proofs of the 
necessity of some institution that will blend stability with liberty. 
I am not unaware of the circumstances which distinguish the 
American from other popular governments, as well ancient as mod- 
ern ; and which render extreme circumspection necessary, in rea- 
soning from the one case to the other. But after allowing due 
weight to this consideration, it may still be maintained, that there 
are many, points of similitude which render these examples not 
unworthy of our attention. Many of the defects, as we have seen, 
wliich can only be supplied by a senatorial institution, are common 
to a numerous assembly frequently elected by the people and to 
(he people themselves. There are othprs peculiar to the former, 
which require the control of such an institution. The people can 
never wilfully betray their own interests : but they may possib'y 
be betrayed by the representatives of the people ; and the danger 
will be evidently greater, where the whole legislative trust is lodged 
in the hands of one body of men, than where the concurrence of 
separate and dissimilar bodies is required in every public act. 

The difference most relied on, between the American and other 
republics, consists in the principle of representation ; which is the 
pivot on which the former move, and which is supposed to have 



292 THE FEDERALIST. 

been unknown to the latter, or at least to the ancient part of them. 
The use which has been made of this difference, in reasonings 
contained in former papers, will have shown, that I am disposed 
neither to deny its existence, nor to undervalue its importance. I 
feel the less restraint, therefore, in observing, that the position 
concerning the ignorance of the ancient governments on the sub- 
ject of representation, is by no means precisely true in the latitude 
commonly. given to it. Without entering into a disquisition which 
here would be misplaced, I will refer to a few known facts, in 
support of what I advance. 

In the most pure democracies of Greece, many of the executive 
functions were performed, not by the people themselves, but by 
officers elected by the people, and representing them in their ex- 
ecutive capacity. 

Prior to the reform of Solon, Athens was governed by nine 
archons, annually elected by the people at large. The degree of 
power, delegated to them, seems to be left in great obscurity. 
Subsequent to that period, we find an assembly, first of four, and 
afterwards of six hundred members, annually elected by the peo- 
ple ; -dnd partially representing them in their legislative capacity, 
since they were not only associated with the people in the func- 
tion of making laws, but had the exclusive right of originating 
legislative propositions to the people. The senate of Carthage, 
also, whatever might be its power, or the duratioti of its appoint- 
ment, appears to have been elective by the suffrages of the people. 
Similar instances might be traced in most, if not all the popular 
governments of antiquity. 

Lastly, in Sparta, we meet with the ephori, and in Rome with 
the tribunes ; two bodies, small indeed in number, but annually 
elected by the whole body of the people and considered as the 
representatives of the people, almost in their plenipotentiary ca- 
pacity. The cosmi of Crete were also aiuiually elected by the 
people; and have been considered by some authors as an institu- 
tion analogous to those of Sparta and Rome, with this difference 
only, that in the election of that representative body the right of 
suffrage was communicated to a part only of the people. 

From these facts, to which many others might be add'3d, it is 
clear that the principle of representation was neither unknown to 
the ancients, nor wholly overlooked in their political constitutions. 
The true distinction between these and the American governments, 
lies in the total exclusion of the people, in their collective capac- 
ity, from any share in the latter, and not in the total exclusion of 
the representatives of the people from the administration of the 
former. The distinction, however, thus qualified, must be admit- 
ted to leave a most advantageous superiority in favor of the United 
States. But to insure to this advantage its full effect, we must be 
careful not to separate it from the other advantage, of an extensive 



THE FEDERALIST. 293 

territory. For it cannot be believed, that any form of represent- 
ative government could have succeeded within the narrow limits 
occupied by the democracies of Greece. 

In answer to all these arguments, suggested by reason, illustrat- 
ed by examples, and enforced by our own experience, the jealous 
adversary of the constitution will probably content himself with 
repeating, thai a senate appointed not immediately by the people 
and for the term of six years, must gradually acquire a dangerous 
preeminence in the government, and finally transform it into a 
tyrannical aristocracy. 

To this general answer, the general reply ought to be suffi- 
cient ; that liberty may be endangered by the abuses of libeij;^, 
as well ~as~E^jfre abuses of power ; that there are numerous in- 
stances ^T~the former as well as of the latter; and that the form- 
er, rather than the latter, is apparently most to be apprehended by 
the United States. But a more particular reply may be given. 

Before such a revolution can be efiiected, the senate, it is to be 
observed, must in the first place corrupt itself; must next corrupt 
the state legislatures ; must then corrupt the house of representa- 
tives ; and must finally corrupt the people at large. It is evident 
that the senate must be first corrupted, before it can attempt an 
establishment of tyranny. Without corrupting the legislatures, it 
cannot prosecute the attempt, because the periodical change of 
members would otherwise regenerate the whole body. Without 
exerting the means of corruption with equal success on the house 
of representatives, the opposition of that coequal branch of the 
government would inevitably defeat the attempt; and without 
corrupting the people themselves, a succession of new representa- 
tives would speedily restore all things to their pristine order.. Is 
there any man who can seriously persuade himself, that the pro- 
posed senate can, by any possible means within the compass of 
human address, arrive at the object of a lawless ambition, through 
all these obstructions? 

If reason condemns the suspicion, the same sentence is pro- 
nounced by experience. The constitution of Maryland furnishes 
the most apposite example. The senate of that state is elected, 
as the federal senate will be, indirectly by the people ; and for a 
term less by one year only than the federal senate. I^ is distin- 
guished, also, by the remarkable prerogative of filhng up its own 
vacancies within the term of its appointment ; and at the same 
time, is not under the control of any such rotation as is provided 
for the federal senate. There are some other lesser distinctions, 
which would expose the former to colorable objections, that do 
not lie against the latter. If the federal senate, therefore, really 
contained the danger which has been so loudly proclaimed, some 
symptoms at least of a like danger ought by this time to have 
been betrayed by the senate of Maryland : but no such symptoms 



294 THE FEDERALIST. 

have appeared. On the contrary, the jealousies at first entertain- 
ed by men of the same description with those who view with 
terror the correspondent part of the federal constitution, have been 
gradually extinguished by the progress of the experiment ; and 
the Maryland constitution is daily deriving, from the salutary op- 
eration of this part of it, a reputation in which it will probably 
not be rivalled by that of any state in the union. 
r> But if any thing could silence the jealousies on this subject, it 
ought to be the British example. The senate there, instead of 
, being elected for a term of six years, and of being unconfined to 
I particular families or fortunes, is an hereditary assembly of opulent 
I nobles. The house of representatives, instead of being elected for 
two years, and by the whole body of the people, is elected for sev- 
en years ; and, in very great proportion, by a very small proportion 
of the people. Here, unquestionably, ought to be seen in full dis- 
play the aristocratic usurpations and tyranny which are at some fu- 
ture period to be exemplified in the United States. Unfortunately, 
however, for the anti-federal argument, the British history informs 
ns that this liereditary assembly has not been able to defend itself 
against the continual encroachments of the house of representa- 
tives; and that it no sooner lost the support of the monarch, than 
it was actually crushed by the weight of the popular branch. 

As far as antiquity can instruct us on this subject, its examples 
support the reasoning which we have employed. In Sparta, the 
ephori, the annual representatives of the people, were found an 
overmatch for the senate for life ; continually gained on its author- 
ity, and finally drew all power into their own hands. The tri- 
bunes of Rome, who were the representatives of the people, pre- 
vailed, it is well known, in almost every contest with the senate 
for life, and in the end gained the most complete triumph over it. 
This fact is the more remarkable, as unanimity was required in 
every act of the tribunes, even after their number was augmented 
to ten. It proves the irresistible force possessed by that branch 
of a free government, which has the people on its side. To these 
examples might be added that of Carthage, whose senate, accord- 
ing to the testimony of Polybius, instead of drawing all power 
into its vortex, had, at the commencement of the second punic 
war, lost almost the whole of its original portion. 

Besides the conclusive evidence resulting from this assemblage of 
facts, that the federal senate will never be able to transform itself 
by gradual usurpations into an independent and aristocratic body; 
we are warranted in believing, that if such a revolution should 
ever happen from causes which the foresight of man cannot guard 
against, the house of representatives, with the people on their side, 
will at all times be able to bring back the constitution to its prim- 
itive form and principles. Against the force of the immediate re- 
presentatives of the people, nothing will be able to maintain even 



THE FEDERALIST. 295 

the constitutional authority of the senate, but such a display 
of enlightened policy, and attachment to the public good, as will 
divide with that branch of the legislature the affections and sup- 
port of the entire body of the people themselves. 

PUBLIUS. 



BY JOHN JAY. 

A FURTHER VIEW OP THE CONSTITUTION OF THE SENATE IN REGARD 
TO THE POWER OF MAKING TREATIES. 

It is a just, and not a new observation, that enemies to particu- 
lar persons, and opponents to particular measures, seldom confine 
their censures to such things only in either, as are worthy of blame. 
Unless on this principle, it is difficult to explain the motives of 
their conduct, who condemn the proposed constitution in the ag- 
gregate, and treat with severity some of the most unexception- 
able articles in it. r^ f | 

The second section gives power to the president, ^^byandioith \\l t 
" the advice and consent of the senate, to make treaties, provided «I * | 
"two thirds of the senators present concur." V- 

The power of making treaties is an important oiie, especially, 
as it relates to Vv^ar, peace, and commerce ; and it should not be 
delegated but in such a mode, and with such precautions, as will 
afford the highest security, that it will be exercised by men the I . 
best qualified for the purpose, and in the manner most conducive f 
to the public good. The convention appear to have been alten- • 
tive to both these points; they have directed the president to be 
chosen by select bodies of electors, to be deputed by the people 
for that express purpose ; and they have committed the appoint- 
ment of senators to the state legislatures. This mode has, in 
such cases, vastly the advantage of elections by the people in their 
collective capacity, where the activity of party zeal, taking advan- ' 
tage of the supineness, the ignorance, the hopes, and fears of the | 
unwary and interested, often places men in office by the votes of ! 
a small proportion of the^electors. 

As the select assemblies for choosing the president, as well as / 
the state legislatures who appoint the senators, will in general, be [ 
composed of the most enlightened and respectable citizens, there 
is reason to presume, that their attention and their votes will be 
directed to those men only who have become the most distin- 
guished by their abilities and virtue, and in whom the people per- 
ceive just grounds for confidence. The constitution manifests very 



296 THE FEDERALIST. 

particular attention to this object. By excluding men under thir- 
ty-five from the first office, and those under thirty from the sec- 
ond, it confines the elections to men of whom the people have 
had time to form a judgment, and with respect to whom they will 
not be liable to be deceived by those brilliant appearances of ge- 
nius and patriotism, which, like transient meteors, sometimes mis- 
lead as well as dazzle. If the observation be woW founded, that 
wise kings will always be served by able ministers, it is fair to 
argue, that as an assembly of select electors posses?, in a greater 
'degree than kings, the means of extensive and accurate informa- 
tion relative to men and characters, so will their appointments 
bear at least equal marks of discretion and discernment. The in- 
ference which naturally results from these considerations is this, 
that the president and senators so chosen will always be of the 
number of those who best understand our national interests, wheth- 
er considered in relation, to the several states or to foreign nations, 
who are best able to promote those interests, and whose reputa- 
tion for integrity inspires and merits confidence. With such men 
the power of making treaties may be safely lodged. 

Although the absolute necessity of system, in the conduct of 
any business, is universally known and acknowledged, yet the 
high importance of it in national affairs, has not yet become suf- 
ficiently impressed on the public mind. They who wish to com- 
mit the power under consideration to a popular assembly, compos- 
ed of members constantly coming and going in quick succession, 
seem not to recollect, that such a body must necessarily be inad- 
equate to the atfainment of those great objects, which require to 
be steadily contemplated in all their relations and circumstances, 
and which can only be approached and achieved by measures, 
which not only talents, but also exact information, and often 
much time, are necessary to concert and to execute. It was wise 
therefore, in convention to provide, not only that the power of 
making treaties should be committed to able and honest men, but 
also that they should continue in place a sulScient time to become 
perfectly acquainted with our national concerns, and to form and 
introduce a system for the management of them. The duration 
prescribed is such as will give them an opportunity of greatly ex- 
tending their political information, and of rendering their accumu- 
lating experience more and more beneficial to their country. Nor 
has the convention discovered less prudence, in providing for the 
frequent elections of senators in such a way, as to obviate the in- 
convenience of periodically transferring those great affairs entirely 
to new men : for by leaving a considerable residue of the old ones 
in place, uniformity and order, as well as a constant succession of 
official information, will be preserved. 

There are few who will not admit, that the aff'airs of trade and 
navigation should be regulated by a system cautiously formed and 



THE FEDERALIST. 297 

steadily pursued : and that both our treaties and our laws should 
correspond with and be made to promote it. It is of much con- 
sequence that this correspondence and conformity be carefully 
maintained ; and they who assent to the truth of this position, 
will see and confess, that it is well provided for, by making con- 
currence of the senate necessary, both to treaties and to laws. 

It seldom happens in the negotiation of treaties, of whatever 
nature, but that perfect secrecy and immediate dispatch are some- 
times requisite. There are cases where the most useful intelligence 
may be obtained, if the persons possessing it can be relieved from 
apprehensions of discovery. Those apprehensions will operate 
on those persons, whether they are actuated by mercenary or 
friendly motives ; and there doubtless are many of both descrip- 
tions, who would rely on the secrecy of the president, but who 
would not confide in that of the senate, and still less in that of a 
large popular assembly. The convention have done well, there- 
fore, in so disposing of the power of making treaties, that although 
the president must, in forming them, act by the advice and con- 
sent of the senate, yet he will be able to manage the business of 
intelligence in such a manner as prudence may suggest. 

They who have turned their attention to the affairs of men, must 
have perceived that there are tides in them ; tides, very irregular 
in their duration, strength, and direction, and seldom found to run 
twice exactly in the same manner or measure. To discern and to ■ 
profit by these tides in national affairs, is the business of those who 
preside over them ; and they who have had much experience on 
this head inform us, that there frequently are occasions when days, 
nay, even when hours are precious. The loss of a battle, the death 
of a prince, the removal of a minister, or other circumstances inter- 
vening to change the present posture and aspect of aff'airs, may 
turn the most favorable tide into a course opposite to our wishes. 
As in the field, so in the cabinet, there are moments to be seized as 
they pass, and they who preside in either, should be left in capaci- 
ty to improve them. So often and so essentially have we hereto- 
fore suffered from the want of secrecy and dispatch, that the con- 
stitution would have been inexcusably defective, if no attention 
had been paid to those objects. The matters which in negotiations'^^ 
usually require the most secrecy, and the most dispatch, are those 
preparatory and auxiliary measures which are no otherwise impor- 
tant in a national view, than as they tend to facilitate the attain- 
ment of the main objects. For these, the president will find no 
difficulty to provide ; and should any circumstance occur, which 
requires the advice and consent of the senate, he may at any time -^ 
convene them. Thus we see, that the constitution provides that 
our negotiations for treaties shall have every advantage which can 
be derived from talents, information, integrity, and deliberate in- 

38 



298 THE FEDERALIST. 

vestigation, on the one hand ; and from secrecy and dispatch, an 
the other. 

But to this plan, as to most others that have ever appeared, ob- 
jections are contrived and nrged. 

Some are displeased with it, not on account of any errors or de- 
fects in it, but because, as the treaties, when made, are to have 
the force of laws, they should be made only by men invested with 
legislative authority. These gentlemen seem not to consider that 
the judgments of our courts, and the commissions constitutionally 
given by our governor, are as valid and as binding on all persons 
whom they concern, as the laws passed by our legislature. All 
constitutional acts of power, whether in the executive or in the 
judicial department, have as much legal vaHdity and obligation as 
if they proceeded from the legislature ; and therefore, whatever 
name be given to the power of making treaties, or however obliga- 
tory they may be when made, certain it is, that the people may, 
with much propriety, commit the power to a distinct body from 
the legislature, the executive or the judicial. It surely does not 
follow, that because they have given the power of making laws 
to the legislature, that therefore they should likewise give them 
power to do every other act of sovereignty, by which the citi- 
zens are to be bound and affected. 

Others, though content that treaties should be made in the mode 
proposed, are averse to their being the supreme law of the land. 
They insist, and profess to believe, that treaties, like acts of assem- 
bly, should be repealabJe at pleasure. This idea seems to be new 
and peculiar to this country } but new errors, as well as new truths, 
often appear. These gentlemen would do well to reflect, that a 
treaty is only another name for a bargain ; and that it would be 
impossible to find a nation who would make any bargain with vs, 
which should be binding on them absolutely, but on us only so 
long and so far as we may think proper to be bound by it. They 
who make laws may, without doubt, amend or repeal them, and 
it will not be disputed that they who make treaties, may alter or 
cancel them : but still let us not forget that treaties are made not 
by one only of the contracting parties, but by both ; and conse- 
quently, that as the consent of both was essential to their forma- 
tion at first, so must it ever afterwards be to alter or cancel them. 
The proposed constitution, therefore, has not in the least extended 
the obligation of treaties. They are just as binding, and just as 
far beyond the lawful reach of legislative acts now, as they will 
be at any future period, or under any form of government. 

However useful jealousy may be in republics, yet when like bile 
in the natural, it abounds too much in the body politic, the eyes of 
both beconle very liable to be deceived, by the delusive appear- 
ances which that malady casts on surrounding objects. From this 
cause, probably proceed the fears and apprehensions of some, that 



THE FEDERALIST. 299 

the president and senate may make treaties without an equal eye 
to the interests of all the states. Others suspect, that the two 
thirds will oppress the remaining third, and ask, whether those 
gentlemen are made sufficiently responsible for their conduct ; 
whether, if they act corruptly, they can be punished ? And if 
they make disadvantageous treaties, how are we to get rid of 
those treaties ? 

As all the states are equally represented in the senate, and by 
men the most able and the most willing to pramote the interest of 
their constituents, they will all have an equal degree of influence 
in that body, especially while they continue to be careful in ap- 
pointing proper persons, and to insist on their punctual attendance. 
In proportion as the United States assume a national form, and a 
national character, so will the good of the whole be more and 
more an object of attention ; and the government must be a 
weak one indeed, if it should forget', that the good of the whole 
can only be promoted by advancing the good of each of the 
parts or members which compose the whole. It will not be in 
the power of the president and senate to make any treaties, by 
which they, and their families and estates, will not be equally 
bound and affected with the rest of the community : and having 
no private interests distinct from that of the nation, they will be 
under no temptations to neglect the latter. 

As to corruption, the case is not supposable. He must either 
have been very unfortunate in his intercourse with the world, or 
possess a heart very susceptible of such impressions, who can 
think it probable, that the president and two thirds of the senate, 
will ever be capable of such unworthy cotiduct. The idea is 
too* gross, and to invidious to be entertained. But if such a 
case should ever happen, the treaty so obtained from us would, 
like aii other fraudulent contracts, be null and void by the law of 
nations. 

With respect to their responsibility, it is difficult to conceive, 
how it could be increased. Every consideration that can influ- 
ence the human mind, such as honor, oaths, reputation, con- 
science, the love of country, family aflections, and attachments, 
afford security for their fidelity. In short, as the constitution has 
taken the utmost care that they shall be men of talents and in- 
tegrity, we have reason to be persuaded, that the treaties they 
make will be as advantageous, as, all circumstances considered, 
could be made ; and so far as the fear of punishment and disgrace 
can operate, that motive to good behavior is amply afforded by 
Jhe article on the subject of impeachments. PUBLIUS. 



300 THE FEDERALIST. 

3srxj3Sj:BE:Ei x.x:Ar- 

BY ALEXANDER HAMILTON. 

A FURTHER VIEW OP THE CONSTITUTION OP THE SENATE, IN RELA- 
TION TO ITS CAPACITY AS A COURT FOR THE TRIAL OF IMPEACH- 
MENTS. 

The remaining powers which the plan of the convention allots 
to the senate, in a distinct capacity, are comprised in their j>ar- 
ticipation with the executive in the appointment to offices, and 
in their judicial character as a court for the trial of impeach- 
ments. As in the business of appointments, the executive will 
be the principal agent, the provisions relating to it will most 
properly be discussed in the examination of that department. 
We will therefore conclude this head, with a view of the judicial 
character of the senate. 

A well-constituted court for the trial of impeachments is an ob- 
ject not more to be desired, than difficult to be obtained in a gov- 
ernment wholly elective. The subjects of its jurisdiction are those 
offences which proceed from the misconduct of public men, or, in 
other words, from the abuse or violation of some public trust. 
They are of a nature which may with peculiar propriety be de- 
nominated POLITICAL, as they relate chiefly to injuries doiie imme- 
diately to the society itself. The prosecution of them, for this 
reason, will seldom fail to agitate the passidTis of the whole com- 
munity, and to divide it into parties more«or less friendly, or ini- 
mical, to the accused. In many cases, it will connect itself with 
the preexisting factions, and will enlist all their animosities, par- 
tialities, iiifluence, and interest on one side, or on the other ; c^nd 
in such cases, there will always be the greatest danger, that the 
decision will be regulated more by the comparative strength of 
parties, than by the real demonstrations of innocence or guilt. 

The delicacy and magnitude of a trust, which so deeply con- 
cerns the political reputation and existence of every man engaged 
in the admitiistration of public affairs, speak for themselves. The 
difficidty of placing it rightly, in a government resting entirely 
on the basis of periodical elections, will as readily be perceived, 
when it is considered that the most conspicuous characters in it will, 
from that circumstance, be too often the leaders, or the tools 
of the most cunning or the most numerous faction ; and on this 
account, can hardly be expected to possess the requisite neutrality 
towards those whose conduct may be the subject of scrutiny. 

The convention, it appears, thought the senate the most fit de- 
positary of this important trust. Those who can best discern the 
intrinsic difficulty of the thing, will be least hasty in condemn- 
ing that opinion ; and will be most inclined to allow due weight 
to the arguments which may be supposed to have produced it. 



THE FEDERALIST. 301 

What, it may be asked, is the true spirit of the institution itself; 
Is it not designed as a method of national inquest into the con- 
duct of public men ? If this be the design of it, who can so pro- 
perly be the inquisitors for the nation' as the representatives of the 
nation themselves ? It is not disputed that the power of originat- 
ing the inquiry, or in other words, of preferring the impeachment, 
ought to be lodged in the hands of one branch of the legislative 
body : will not the reasons which indicate the propriety of this ar- 
rangement, strongly plead for an admission of the other branch of 
that body to a share of the inquiry? The model, from which the 
idea of this institution has been borrowed, pointed out that course 
to the convention. In Great Britain, it is the province of the 
house of commons to prefer the impeachment ; and of the house 
of lords to decide upon it. Several of the state constitutions have 
followed the example. As well the latter, as the former, seem to 
have regarded the practice of impeachments, as a bridle in the 
hands of the legislative body upon the executive servants of the 
government. Is not this the true light in which it ought to be 
regarded ? 

Where else than in the senate, could have been found a tribu- 
nal sufhcieotly dignified, or sufficiently independent ? What other 
body would be likely to feel confidence enough in its own situa- 
tion.! to preserve unawed and uninfluenced, the necessary impar- 
tiality between an individual accused, and the represetitatives of 
the people., his accusers. 

Could the supreme court have been relied upon as answering 
this description ? It is much to be doubted, whether the members 
of that tribunal would at all times, be endowed with so eminent a 
portion of fortitude, as would be called for in the execution of so 
difficult a task ; and it is still more to be doubted, whether they 
would possess a degree of credit and authority, which might on 
certain occasions, be indispensable towards reconciling the people 
to a decision that should happen to clash with an accusation 
brought by their immediate representatives. A deficiency in the 
first, would be fatal to the accused ; in the last, dangerous to the 
public tranquillity. The hazard in both these respects, could only 
be avoided, if at all, by rendering that tribunal more numerous 
than would consist with a reasonable attention to economy. The 
necessity of a numerous court for the trial of impeachments, is 
equally dictated by the nature of the proceeding. This can never 
be tied down by such strict rules, either in the delineation of the 
oflfences by the prosecutors, or in the construction of it by the 
judges, as in common cases serve to limit the discretion of courts 
in favor of personal security. There will be no jury to stand be- 
tween the judges, who are to pronounce the sentence of the law, 
and the party who is to receive or suffer it. The awful discretion 
which a court of impeachments must necessarily have, to doom to 



302 THE FEDERALIST. 

honor or to infamy the mo^t confidential and the most distinguish- 
ed characters of the community, forbids the commitment of the 
trust to a small number of persons. 

These considerations seem alone sufficient to authorize a conclu- 
sion, that the supreme court would have been an improper substi- 
tute for the senate, as a court of impeachments. There remains a 
further consideration, which will not a little strengthen this conclu- 
sion. It is this: — The punishment which may be the conse- 
quence of conviction upon impeachment, is not to terminate the 
chastisement of the offender. After having been sentenced to a 
perpetual ostracism from the esteem and confidence, and honors 
and emoluments of his country, he will still be liable to prosecu- 
tion and punishment in the ordinary course of law. Would it be 
proper that the persons who had disposted of his fame, and his 
most valuable rights as a citizen, in one trial, should, in another 
trial, for the same offence, be also the disposers of his life and his 
fortune ? Would there not be the greatest reason to apprehend, 
that error, in the first sentence, would be the parent of error in the 
second sentence ? That the strong bias of one decision, would be 
apt to overrule the influence of any new lights which might be 
brought to vary the complexion of another decision ? Those who 
know any thing of human nature, will not hesitate to answer these 
questions in the affirmative; and will be at no loss to perceive, that 
by making the same persons judges in both cases, those who might 
happen to be the objects of prosecution would, in a great measure, 
be deprived of the double security intended them by a double trial. 
The loss of life and estate would often be virtually included in a 
sentence which, in its terms, imported nothing more than dismis- 
sion from a present, and disqualification for a future office. It 
may be said, that the intervention of a jury, in the second instance, 
would obviate the danger. But juries are frequently influenced 
by the opinions of judges. They are sometimes induced to find 
special verdicts, which refer the main question to the decision of 
the court. Who would be willing to stake his life and his estate 
upon the verdict of a jury acting under the auspices of judges 
who had predetermined his guilt ? 

Would it have been an improvement of the plan, to have united 
the supreme court with the senate, in the formation of the court 
of impeachments ? This union would certainly have been attend- 
ed with several advantages ; but would they not have been over- 
balanced by the signal disadvantage already stated, arising from 
the agency of the same judges in the double prosecution to which 
the offender would be liable ? To a certain extent, the benefits of 
that union will be obtained from making the chief justice of the 
supreme court the president of the court of impeachments, as is 
proposed to be done in the plan of the convention ; while the in- 
conveniences of an entire incorporation of the former into the lat- 



THE FEDERALIST, 803 

ter will be substantially avoided. This was perhaps the prudent 
mean. I forbear to remark upon the additional pretext for clamor 
against the judiciary, which so considerable an augmentation of 
its authority would have afforded. 

Would it have been desirable to have composed the court for 
the trial of impeachments, of persons wholly distinct from the other 
departments of the government? There are weighty arguments, 
as well against, as in favor of such a plan. To some minds it will not 
appear a trivial objection, that it would tend to increase the com- 
plexity of the political machine, and to add a liew spring to the 
government, the utility of which would at best be questionable. 
But an objection which will not be thought by any unworthy of 
attention, is this ; a court formed upon such a plan, would either be 
attended with heavy expense, or might in practice be subject to a 
variety of casualties and inconveniences. It must either consist of 
permanent officers, stationary at the seat of government, and of 
course entitled to fixed and regular stipends, or of certain officiers 
of the state governments, to be called upon whenever an impeach- 
ment was actually depending. It will not be easy to imagine any 
third mode materially different, which could rationally be proposed. 
As the court, for reasons already given, ought to be numerous; 
the first scheme will be reprobated by every man, who can com- 
pare the extent of the public wants with the means of supplying 
them ; the second will be espoused with caution by those who will 
seriously consider the difficulty of collecting men dispersed over 
the whole union ; the injury to the innocent, from the procrastinat- 
ed determination of the charges which might be brought against 
them ; the advantage to the guilty, from the opportunities which 
delay would afford for intrigue and corruption ; and in some cases 
the detriment to the state from the prolonged inaction of men whose 
firm and faithful execution of their duty might have exposed them 
to the persecution of an intemperate or designing majority in the 
house of representatives. Though this latter supposition may seem 
harsh, and might not be likely often to be verified ; yet it ought 
not to be forgotten that the demon of faction will, at certain 
seasons, extend his sceptre over all numerous bodies of men. 

But though one or the other of the substitutes which have been 
examined, or some other that inight be devised, should in this re- 
spect, be thought preferable to the plan reported by the conven- 
tion, it will not follow that the constitution ought for this reason to 
be rejected. If mankind were to resolve to agree in no institution 
of government, until every part of it had been adjusted to the most 
exact starjdard of perfection, society would soon become a general 
scene of anarchy, and the world a desert. Where is the standard 
of perfection to be found ? Who will undertake to unite the dis- 
cordant opinions of a whole community, in the same judgment of 
it ; and to prevail upon one conceited projector to renounce his m- 



304 THE FEDERALIST. 

Jallihle criterion, for the fallible criterion of his more conceited 
neighbor 1 To answer the purpose of the adversaries of the con- 
stitution, they; ought to proVe, not merely that particular provisions 
in it are not the best which might have been imagined, but that 
the plan upon the whole is bad and pernicious. PUBLIUS. 



BY ALEXANDER HAMILTON. 

THE SAME SUBJECT CONTINUED. 



A REVIEW of the principal objections that have appeared against 
the proposed court for the trial of impeachments, will not im- 
probably eradicate the remains of any unfavorable impressions 
which may still exist in regard to this matter. 

The ^?-s^ of these objections is, that the provision in question 
confounds legislative and judiciary authorities in the same body, in 
violation of that important and well established maxim which re- 
quires a separation between the different departments of power. 
The true meaning of this' maxim has been discussed and as- 
certained in another place, and has been shown to be entirely 
compatible with a partial intermixture of those departments for 
special purposes, preserving them, in the main, distinct and un- 
connected. This partial intermixture is even, in some cases, not 
only proper, but necessary to the mutual defence of the several 
members of the government against each other. An absolute or 
qualified negative in the executive upon the acts of the legislative 
body, is admitted by the ablest adepts in political science to be an 
indispensable barrier against the encroachments of the latter upon 
the former. And it may, perhaps, with not less reason be con- 
tended, that the powers relating to impeachments are, as before in- 
timated, an essential check in the hands of that body upon the 
encroachments of the executive. The division of them between 
the two branches of the legislature, assigning to one the right of 
accusing, 'to the other the right of judging, avoids the incon- 
venience of making the same persons both accusers and judges ; 
and guards against the danger of persecution, from the prevalency 
of a factious spirit in either of those branches. As the concur- 
rence of two thirds of the senate will be requisite to a condem- 
nation, the security to innocence, from this additional circum- 
stance, will be as complete as itself can desire. 

It is curious to observe, with what vehemence this part of the 
plan is assailed, on the principle here taken notice of, by men who 
profess to admire, without exception, the constitution of this state ; 



THE FEDERALIST. 305 

while that very constitution makes the senate, together with the 
chancellor and judges of the supreme court, not only a court of 
impeachments, but the highest judicatory in the state in all causes 
civil and criminal. The proportion in point of numbers, of the 
chancellor and judges to the senators, is so inconsiderable, that the 
judiciary authority of New York, in the last resort, may, with 
truth, be said to reside in its senate. If the plan of the conven- 
tion be, in this respect, chargeable with a departure from the cel- 
• ebrated maxim which has been so often mentioned, and seems to 
be so little understood, how ranch more culpable must be the con- 
stitution of New York !* 

A second objection to the senate, as a court of impeachments, 
is, that it contributes to an undue accumulation of power in that 
body, tending to give to the government a countenance too aris- 
tocratic. The senate, it is observed, is to have concurrent authority 
with the executive in the formation of treaties and in the appoint- 
ment to offices : if, say the objectors to these prerogatives, is ad- 
ded that of determining in all cases of impeachment, it will give 
a decided predominancy to senat.)rial influence. To an objection 
so little precise in itself, it is not easy to find a very precise answer. 
Where is the measure or criterion to which we can appeal, for 
estim^atiug what v/ill give the senate too much, too little, or barely 
the proper degree of influence ? Will it not be more safe, as well 
as more simple, to dismiss such vague and uticertain calculations, 
to examine each power by itself, and to decide on general prin- 
ciples where it may he deposited with most advantage, and least 
inconvenience ? 

If we take this course, it will lead to a more intelligible, if not 
a more certain result. The disposition of the power of making 
treaties, wliich has obtained in the plan of the convention, will, 
then, if I mistake not, appear to be fully justified by the consider- 
ations stated in a former number, and by others which will occur 
under the next head of our inquiries. The expediency of the 
junction of the senate with the executive, in the power of appoint- 
ing to offices, will, 1 trust, be placed in a light not less satisfactory, 
in the disquisitions under the same head. And I flatter myself 
the observations in my last paper must have gone no inconsider- 
able way towards proving, that it was not easy, if practicable, to 
find a more fit receptacle for the power of determining impeach- 
ments, than that which has been chosen. If this be truly the 
case, the hypothetical danger of the too great weight of the sen- 
ate, oiiglit to be discarded from our reasonings. 

But this hypothesis, such as it is, has already been refuted in the 
remarks applied to the duration of office prescribed for the sena- 

* In tliat of New Jersey, also, the final judiciary authority is in a branch of the 
legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Caroli- 
na, one branch of the legislature is the court for the trial of impeachments. 

39 



306 THE FEDERALIST. 

tors. It was by them shown, as well on the credit of historical 
examples, as from the reason of the thing, that the most popular 
branch of every government, partaking of the republican geniusj 
by being generally the favorite of the people, will be as generally 
a full match, if not an overmatch, for every other member of 
the government. 

Bnt independent of this most active and operative principle ; to 
secure the equilibrium of the national house of representatives, the 
plan of the convention has provided in its favor several important 
counterpoises to the additional authorities to be conferred upon the 
senate. The exclusive privilege of originating money-bills will 
belong to the house of representatives. The same house will pos- 
sess the sole right of instituting impeachments : is not this a com- 
plete counterbalance to that of determining them ? The same 
house will be the umpire in all elections of the president, which 
do not unite the suffrages of a majority of the whole number of 
electors; a case which it cannot be doubted will sometimes, if 
not frequently, happen. The constant possibility of the thing 
must be a fruitful source of influence to that body. The more it 
is contemplated, the more important will appear this ultimate, 
though contingent power, of deciding the competitions of the 
most illustrious citizens of the union, for the first office in it. It 
would not perhaps be ra^i to predict, that as a mean of influence 
it will be found to outweigh all the peculiar attributes of the senate. 

A third objection to the senate as a court of impeachments, is 
drawn from the agency they are to have in the appointments to 
office. It is imagined that they would be too indulgent judges of 
the conduct of men, in whose official creation they had participat- 
ed. The principle of this objection would condemn a practice, 
which is to be seen in all the state governments, if not in all the gov- 
ernments with which we are acquainted ; I mean that of render- 
ing those who hold offices during pleasure, dependent on the pleas- 
ure of those who appoint them. With equal plausibility might it 
be alleged in this case, that the favoritism of the latter would al- 
ways be an asylum for the misbehavior of the former. But that 
practice, in contradiction to this principle, proceeds upon the pre- 
sumption, that the responsibility of those who appoint, for the fit- 
ness and competency of the persons on whom they bestow their 
choice, and the interest they have in the respectable and prosper- 
ous administration of afl'airs, will inspire a sufficieiit disposition to 
dismiss from a share in it all such who by their conduct may have 
proved themselves unworthy of the confidence reposed in them. 
Though facts may not always correspond with this presumption, yet 
if it be in the main, just, it must destroy the supposition, that the 
senate, who will merely sanction the choice of the executive, 
should feel a bias, towards the objects of that choice, strong enough 
to blind them to the evidences of guilt so extraordinary, as to 



THE FEDERALIST. 307 

have induced the representatives of the nation to become its 
accusers. 

If any further argument were necessary to evince the improba- 
bility of such a bias, it might be found in the nature of the agen- 
cy of the senate, in the business of appointments. 

It will be the office of the president to nominate, and with the 
advice and consent of the senate to appoint. There will of course 
be no exertion ol choice, on the part of the senate. They may 
defeat one choice of the executive, and oblige him to make anoth- 
er ; but they cannot themselves choose — they can only ratify or 
reject the choice he may have made. They might even entertain 
a preference to some other person, at the very moment they were 
assenting to the one proposed ; because there might be no positive 
ground of opposition to him ; and they could not be sure, if they 
withheld their assent, that the subsequent nomination would fall 
upon their own favorite, or upon any other person in their esti- 
mation more meritorious than the one rejected. Thus it could 
liardly happen, that the majority of the senate would feel any 
other complacency towards the object of an appointment, than 
such as the appearances of merit might inspire, and proofs of the 
want of it destroy. 

A fourth objection to the senate, in the capacity of a court of 
impeachments, is derived from their union with the executive in 
the power of making treaties. This, it has been .said, would con- 
stitute the senators their own judges, in every case of a corrupt 
or perfidious execution of that trust. After having combined 
with the executive in betraying the interests of the nation in a 
ruinous treaty, what prospect, it is asked, would there be of their 
being made to suffer the punishment they would deserve, when 
they were themselves to decide upon the accusation brought 
against them for the treachery of which they had been guilty? 

This objection has been circulated with more earnestness, and 
with a greater show of reason thim any other which has appear- 
ed against this part of the plan ; and yet I am deceived, if it does 
not rest upon an erroneous foundation. 

The security essentially intended by the constitution against cor- 
ruption and treachery in the formation of treaties, is to be sought 
for in the numbers and characters of those who are to make them. 
' The JOINT AGENCY of the chief magistrate of the union, and of 
two thirds of the members of a body selected by the collective 
wisdom of the legislatures of the several states, is designed to be 
the pledge for the fidelity of the national councils in this particular. 
The convention might with propriety hawe meditated the punish- 
ment of the executive, for a deviation from the instructions of the 
senate, or a want of integrity in the conduct of the negotiations 
committed to him: they might also have had in view the punish- 
ment of a few leading individuals in the senate, who should have 



308 THE FEDERALIST. 

prostituted their influence in that body, as the mercenary instru- 
ments of foreign corruption : but they could not, with more or 
with equal propriety, have contemplated the impeachment and 
punishment of two thirds of the senate, consenting to an improper 
treaty, than of a majority of that or of the other branch of the na- 
tional legislature, consenting to a pernicious or unconstitutional 
law : a principle which I believe has never been admitted into any 
government. How, in fact, could a majority of the house of rep- 
resentatives irapeaoh themselves ? Not better, it is evident, than 
two thirds of the senate might try themselves. And yet what 
reason is there, that a majority of the house of representatives, 
sacrificing the interests of the society by an unjust and tyrannical 
act of legislation, should escape with impunity, more than two 
thirds of the senate sacrificing the same interests in an injurious 
treaty with a foreign power? The truth is, that in all such cases, 
it is essential to the freedom, and to the necessary independence 
of the deliberations of the body, that the members of it should be 
exempt from punishment for acts done in a collective capacity ; 
and the security to the society must depend on the care which is 
taken to confide the trust to proper hands, to make it their inter- 
est to execute it with fidelity, and to make it as difficult as possi- 
ble for them to combine in any interest opposite to that of the 
public good. 

So far as might concern the misbehavior of the executive in 
perverting the instructions, or contravening the views of the sen- 
ate, we need not be apprehensive of the want of a disposition in 
that body to punish the abuse of their confidence, or to vindicate 
their own authority. We may thus far count upon their pride, if 
not upon their virtue. And so far even as might concern the cor- 
ruption of leading members, by whose arts and influence the ma- 
jority may have been inveigled into measures odious to the com- 
munity : if the proofs of that corruption should be satisfactory, 
the usual propensity of human nature will warrant us in conclud- 
ing, that there would be commonly no defect of inclination in 
the body, to divert the public resentment from themselves, by a 
ready sacrifice of the authors of their mismanagement and disgrace. 

PUBLIUS. 



THE FEDERALIST. 309 

BY ALEXANDER HAMILTON. 

CONCERNING THE CONSTITUTION OF THE PRESIDENT : A GROSS AT- 
TEMPT TO MISREPRESENT THIS PART OF THE PLAN DETECTED. 

The constitntion of the executive department of the proposed 
government, next clauTis our attention. ^ 

There is hardly any part of the system, the arrangement of 
which could have been attended with greater difficulty, and 
there is perhaps none which has been inveighed against with less 
candor or criticised with less judgment. 

Here the writers against the constitution seem to have taken 
pains to signalize their talent of misrepresentation. Calculating 
upon the aversion of the people to monarchy, they have endeav- 
ored to enlist all their jealousies and apprehensions in opposi- 
tion to the intended president of the United States ; not merely 
as the embryo, but as the full-grown progeny of that detested pa- 
rent. To establish the pretended affinity, they have not scrupled 
to draw resources ev.en from the regions of fiction. The authori- 
ties of a magistrate, in iQ.v,^ instances greater, in some instances 
less, than those of a governor of New York, have been magnified 
into more than royal prerogatives. He has been decorated with 
attributes, superior in dignity and splendor to those of a king of 
Great Britain. He has been shown to us with the diadem spark- 
ling on his brow and the imperial purple flowing in his train. He 
has been seated on a throne surrounded with minions and mis- 
tresses; giving audience to the envoys of foreign potentates, in all 
the supercilious pomp of majesty. The images of Asiatic despot- 
ism and voluptuousness, have not been wanting to crown the ex- 
aggerated scene. We have been taught to tremble at the terrific 
visages of murdering janizaries ;. and to blush at the unveiled 
mysteries of a future seraglio. 

Attempts extravagant as these to disfigure, or rather to meta- 
morphose the object, render it necessary to take an accurate view 
of its real nature and form : in order to ascertain its true aspect 
and genuine appearance, to unmask the disingenuity, and to ex- 
pose the fallacy of the counterfeit resemblances which have been 
so insidiously, as well as industriously, propagated. 

In the execution of this task, there is no man who would not 
find it an arduous effort either to behold with moderation, or to 
treat with seriousness, the devices, not less weak than wicked, 
which have been contrived to pervert the public opinion in relation 
to the subject. They so far exceed the usual, though unjustifiable 
licenses of party artifice, that even in a disposition the most candid 
and tolerant, they must force the sentiments which favor an indul- 



310 THE FEDERALIST. 

gent construction of the conduct of political adversaries, to give 
place to a voluntary and unreserved indignation. It is impossible 
not to bestow the imputation of deliberate imposture and deception 
upon the gross pretence of a similitude betv/eeu a king of Great Brit- 
ain, and a magistrate of the character marked out for that of the 
prjssident of the United States. It is still more impossible to with- 
hold that imputation, from the rash and barefaced expedients which 
have been employed to give success to the attempted imposition. 

In one instance, which I cite as a salnple of the general spirit, 
the temerity has proceeded so far as to ascribe to the president of 
the United States a power which, by the instrun)ent reported is 
expresshj allotted to the executives of the individual states. I 
mean the power of filling casual vacancies in the senate. 

This bold experiment upon the discernment of his countrymen, 
has been hazarded by the writer who (whatever may be his real 
merit) has had no inconsiderable share in the applauses of his par- 
ty ;* and who, upon this false and unfounded suggestion, has built a 
series of observations equally false and unfounded. Let him now 
be confronted with the evidence of the fact ; and let him, if he be 
able, justify or extenuate the shameful outrage he has offered to 
the dictates of truth, and to the rules of fair dealing. 

The second clause of the second section of the second article, 
empowers the president of the United States "to nominate," and 
" by and with the advice and consent of the senate, to appoint 
" ambassadors, other public ministers and consuls, judges of the 
" supreme court, and all other officers of the United States, whose 
"appointments are not in the constitution otherwise provided Jor, 
" and ivhich shall be established by law.'^ Immediately after 
this clause follows another in these words : " The president shall 
" have power to fill up all vacancies that may happen during the 
" recess of the senate^ by granting commissions which shall expire 
" at the end of their next session.^' It is from this last provision, 
that the pretended power of the president to fill vacancies in the 
senate has been deduced, A slight attention to the connexion of 
the clauses, and the obvious meaning of the terms,, will satisfy us' 
that the deduction is not even colorable. 

The first of these two clauses, it is clear, only provides a mode 
for appointing such officers, " whose appointments are not other- 
" wise provided for in the constitution, and which shall be estab- 
" lished by law f^ of course it cannot extend to the appointment 
of senators : whose appointments are otherwise provided for in 
the constitution,! ^'^^ \yho are established by th.e constitution, and 
will not require a future establishment by law. This position will 
hardly be contested. 

The last of these two clauses, it is equally clear, cannot be un- 
derstood to comprehend the power of filling vacancies in the sen- 
ate, for the following reasons : — First. The relation in which that 
* See Cato, No. 5. t Article 1, sec. 3, clause 1. • 



THE FEDERALIST. 311 

clause stands to the other, which declares the general mode of ap- 
pointing officers of the United States, denotes it to be nothing 
more than a snpplement to the otiier ; for the purpose of establish- 
ing an auxiliary method of appointment, in cases to which the gen- 
eral metliod was inadequate. The ordinary power of appointment 
is confined to the president and senate jointly, and can therefore 
only be exercised during the session of the senate ; but as it would 
have been improper to obHge tliis body to be continually in session 
for the appointment of officers ; and as vacancies might happen in 

■ their recess, which it might be necessary for the public service to 
fill without delay, the succeeding clause is evidently intended to 
authorize the president, singly, to make temporary appointments 
" during the recess of the senate, by granting commissions which 
" should expire at the end of thinr next session." Second. If this 
clause is to be considered as supplementary to the one which pre- 
cedes, the vacancies of which it speaks must be construed to relate 
to the " officers" described in the preceding one ; and this, we 
have seen, excludes from its description the members of the senate. 
Third. The lime within which the power is to operate " during 
'' the recess of the senate," and the duration of the appointments, 
'■ to the end of the next session" of that body, conspire to eluci- 
date the sense of the provision, which, if it had been intended to 
com[)rehend setiators. would naturally have referred the temporary 
power of filling vacancies to the recess of the state legislatures, 
who are to make the permanent appointments, and not to the re- 
cess of the national senate, who are to have no concern in those 
appointments ; and would have extended the duration in office of 
the temporary senators to the next session of the legislature of the 
state, in whose representation the vacancies had happened, instead 
of making it to expiry at the end of the ensuing session of the na- 
tional senate. The circumstances of the body authorized to make 
the permanent appointments, would, of course, have governed the 
modification of a power which related to the temporary appoint- 
ments ; and as the national senate is the body, whose situati{>n is 
alone contemplated in the clause upon which the suggestion under 
examination has been founded, the vacancies to which it alludes 

*can only be deemed to respect those officers in whose appointment 
that body has a concurrent agency with the president. But lastly 
the first and second clauses of the third section of the first article, 
obviate all possibility of doubt. The former provides, that " the 
"senate of the United States shall be composed of two senators 
"from each state, chosen by the legislature thereof {ov six years;" 
and the latter directs, that " if vacancies in that body should hap- 
" pen by resignation or otherwise, during the recess of the legis- 
" latureof any state, theexecutive thereof may make tempora- 
" ry appointments until the 7i ex t meeting of the legislature, which 
" shall then fill such vacancies." Here is an express power given, 



312 THE FEDERALIST. 

in clear and unambiguous terms, to the state executives, to fill the 
casual vacancies in the senate, by temporary appointments; which 
not only invalidates the supposition, that the clause before consid- 
ered could have been intended to confer that power upon the pres- 
ident of the United States; but proves that this supposition, desti- 
tute as it is even of the merit of plausibility, must have origina- 
ted in an intention to deceive the people, too palpable to be ob- 
scured by sophistrj/", too atrocious to be palliated by hypocrisy. 

I have taken the pains to select this instance of misrepresenta- 
tion, and to place it in a clear and strong light, as an unequivocal 
proof of the unwarrantable arts which are practised, to prevent a 
fair and impartial judgment of the real merits of the plan submit- 
ted to the consideration of the people. Nor have I scrupled, in 
so flagrant a case, to indulge a severity of animadversion, little 
congenial with the general spirit of these papers. I hesitate not 
to submit it to the decision of any candid and honest adversary of 
the proposed government, whether language can furnish epithets 
of too much asperity, for so shameless and so prostitute an at- 
tempt to impose on the citizens of America. PlIBLIUS. 



BY ALEXANDER HAMILTON. 

THE VIEW OF THE CONSTITUTION OP THE PRESIDENT CONTINUED IN 
RELATION TO THE MODE OF APPOINTMENT, 

The mode of appointment of the chief n^agistrate of the United 
States, is almost the only part of the system, of any consequence, 
which has escaped without severe censure, or which has received 
the slightest mark of approbation from its opponents. The most 
plausible of these, who has appeared in print, has even deigned 
to admit, that the election of the president is pretty well guarded.* 
I venture somewhat further, and hesitate not to affii'm, that if the 
manner of it be not perfect, it is at least excellent. It unites in 
an eminent degree all the advantages, the union of which was to 
be wished for. 

It was desirable, that the sense of the people should operate in 
the choice of the person to whom so important a trust was to be 
confided. This end will be answered by committing the right of 
making it, not to any preestablished body, but to men chosen by 
the people for the special purpose, and at the particular conjunc- 
ture. 

It was equally desirable, that the immediate election should be 

* Vide Federal Farmer. 



THE FEDERALIST. 313 

made by men most capable of analyzing the qualities adapted to 
the station, and acting under circumstances favorable to delibera- 
tion, and to a judicious combination of all the reasons and induce- 
ments that were proper to govern their choice. A small number 
of persons, selected by their fellow-citizens from the general mass^ 
will be most likely to possess the information and discernment rer 
quisite to so complicated an investigation. 

It was also peculiarly desirable to afford as little opportuiiity as 
possible to tumult and disorder. This evil v/as not least to be 
dreaded in the election of a magistrate, who was to have so im- 
portant an agency in the administration of the government. ■But 
the precautions which have been so happily concerted in the sys- 
tem under consideration, promi,se an effectual security against this 
mischief. The choice of several, to form an intermediate body 
of electors, will be much less apt to convulse the community, with 
any extraordinary or violent movements, than the choice of one 
who was himself to be the final object of the public wishes. And 
as the electors, chosen in each state, are to assemble and vote in 
the state in which they are chosen, this detached and divided sit- 
uation will expose them much less to heats and ferments, that 
might be comniunicated from them to the people, than if they 
were all to be convened at one time, in one place. 

Nothing was more to be desired than that every practicable ob- 
stacle shbuld be opposed to cabal, intrigue, and corruption. These 
most deadly adversaries of republican government, might naturally 
have been expected to make their approaches from more than one 
quarter, but chiefly from the desire in foreign powers to gain an 
improper ascendant in our councils. How could they better grati- 
fy this, than by raising a creature of their own to the chief magis- 
tracy of the union ? But the convention have guarded against all 
danger of this sort, with the most provident and judicious atten- 
tion. They have not made the appointment of the president to 
depend on preexisting bodies of men, who might be tampered 
with beforehand to prostitute their votes ; but they have referred it 
in the first instance to an immediate act of the people of America, 
to be exerted in the choice of persons for the temporary and sole 
purpose of making the appointment. And they have excluded 
from eligibility to this trust, all those who from situation might be 
suspected of too great devotion to the president in office. No 
senator, representative, or other person holding a place of trust or 
profit under the United States, can be of the number of the elec- 
tors. Thus without corrupting the body of the people, the imme- 
diate agents in the election will at least enter upon the task, free 
from any sinister bias. Their transient existence, and their detach- 
ed situation, already noticed, afford a satisfactory prospect of their 
■continuing so, to the conclusion of it. The business of corrup- 
tion, when it is to embrace so considerable a number of men, re- 
40 



314 THE FEDERALIST. 

quires time, as well as means. Nor would it be found easy sud- 
denly to enibark them, dispersed as they would be over thirteen 
states, in any combinations founded upon motives which, though 
they could not properly be denominated corrupt, might yet be of 
a nature to mislead them from their duty. 

Another, and no less important desideratum was, that the exec- 
utive should be independent for his continuance in office, on all 
but the people themselves. He might otherwise be tempted to 
sacrifice his duty to his complaisance for those whose favor was 
necessary to the duration of his official consequence. This advan- 
tage will also be secured, by making his reelection to depend on 
a special body of representatives, deputed by the society for the 
single purpose of making the important choice. 

All these advantages will be happily combined in the plan de- 
vised by the convention ; which is, that each state shall choose a 
number of persons as electors, equal to the number of senators 
and representatives of such state in the national government, who 
shall assemble within the state, and vote for some fit person as 
president. Their votes, thus given, are to be transmitted to the 
seat of the national government : and the person who may hap- 
pen to have a majority of the whole number of votes, will be the 
president. But as a majority of the votes might not always hap- 
pen to center in one man, and as it might be unsafe to permit less 
than a majority to be conclusive, it is provided, that in su6h a con- 
tingency, the house of representatives shall select out of the can- 
didates, who shall have the five highest number of votes, the man 
who in their opinion may be best qualified for the office. 

This process of election affords a moral certainty, that the office 
of president will seldom fall to the lot of any man who is not in an 
eminent degree endowed with the requisite qualifications. Talents 
for low intrigue, and the little arts of popularity, may alone suffice 
to elevate a man to the first honors of a single state ; bnt it will 
require other talents, and a different kind of merit to establish 
him in the esteem and confidence of the whole union, or of so 
considerable a portion of it, as would be necessary to make him a 
successful candidate for the distinguished office of president of the 
United States. It will not be too strong to say, that there will be 
a constant probability of seeing the station filled by characters pre- 
eminent for ability and virtue. And this will be thought no incon- 
siderable recommendation of the constitution, by those who are 
able to estimate the share which the executive in every government 
must necessarily have in its good or ill administration. Though 
w^e cannot acquiesce in the political heresy of the poet, who says, 

•' For forms of government, let fools contest— 
"That which is best administered, is best ;" 

yet we may safely pronounce, that the true test of a good govern- 
ment is, its aptitude and tendency to produce a good administration. 



THE FEDERALIST. 315 

The vice-president is to be chosen in the same manner with 
the president; with this difference, that the senate is to do, in re- 
spect to the former, what is to be done by the house of represent- 
atives, in respect to the latter. 

The appointment of an extraordinary person, as vice-president, 
has been objected to as superfluous, if not mischievous. It has 
been alleged, that it v/ould have been preferable to have authoriz- 
ed the senate to elect out of their own body an officer answering 
to that description. But two considerations seem to justify the 
ideas of the convention in this respect. One is, that to secure at 
all times the possibility of a definite resolution of the body, it is 
necessary that the president should have only a casting vote. 
And to take the senator of any state from his seat as senator, to 
place him in that of president of the senate, would be to ex- 
change, in regard to the state from which he came, a constant for 
a contingent vote. The other consideration is, that as the vice- 
president may occasionally become a substitute for the president, in 
the supreme executive magistracy, all the reasons which recom- 
mend the mode of election prescribed for the bne, apply with 
great, if not with equal force, to the manner of appointing the 
other. It is remarkable, that in this, as in most other instances, 
the objection which is made would lie against the constitution of 
this state. We have a lieutenant-governor, chosen by the people 
at large, who presides in the senate, and is the constitutional sub- 
stitute for the governor, in casualties similar to those which would 
authorize the vice-president to exercise the authorities, and dis- 
charge the duties of the president. PUBLIUS. 



BY ALEXANDER HAMILTON. 

THE SAME VIEW CONTINUED, WITH A COMPARISON BETWEEN THE 
PRESIDENT AND THE KING OP GREAT BRITAIN, ON THE ONE HAND, 
AND THE GOVERNOR OP NEW YORK, ON THE OTHER. 

I PROCEED now to. trace the real characters of the proposed ex- 
ecutive, as they are marked out in the plan of the convention. 
This will serve to place in a strong light the unfairness of the re- 
presentations which have been made in regard to it. 

The first thing which strikes our attention is, that the executive 
atjthority. with few exceptions, is to be vested in a single magis- 
trate. This will scarcely, however, be considered as a point upon 
which any comparison can be grounded ; for if, in this particular, 
Jhere be a resemblance to the king of Great Britain, there is not 



316 THE FEDERA-LIST. 

less a resemblance to the grand seignor, to the khan of Tartary, to 
the man of the seven mountains, or to the governor of New York. 

That magistrate is to be elected for Joiir years ; and is to be re- 
eligible as often as the people of the United States shall think him 
worthy of their confidence. In these circumstances, there is a 
total dissimilitude between fmn and a king of Great Biitain, who 
is an hereditary monarch, possessing the crown as a patrimony de- 
scendible to his heirs forever ; but there is a close analogy between 
him, and a governor of New York, who is elected for three years, 
and is reeligible without limitation or intermission. If we con- 
sider, how much less time would be requisite for establishing a 
dangerous influence in a single state, than for establishing a like 
influence throughout the United Stales, we must conclude that a 
duration oi four years for the chief magistrate of the union is a 
degree of permanency far less to be dreaded in that office, than a 
duration of three years for a correspondent oflice in a single state. 

The president of the United States would be liable to be im- 
peached, tried, and, upon conviction of treason, bribery, or other 
high crimes or misdemeanors, removed from office : and would 
afterwards be liable to prosecution and punishment in the ordina- 
ry course of law. The person of the king of Great Britain is 
sacred and inviolable: there is no constitutional tribunal to which 
he is amenable ; no punishment to which he can be subjected, 
without involving the crisis of a national revolution. In this del- 
icate and important circumstance of personal responsibility, the 
president of confederaled America would stand upon no better 
ground than a governor 'of New York, and upon worse ground 
than the governors of Virginia and Delaware. 
/ The president of the United States is to have power to return a 
' bill, which shall have passed the two branches of the legislature, 
for reconsideration ; and the bill so returned, is not to become a 
law, unless upon that reconsideration, it be approved by two thirds 
of both houses. The king of Great Britain, on his part, has an 
absolute negative upon the acts of the two houses of parliament. 
The disuse of that power for a considerable time past, does not 
affect the reality of its existence ; and is to be ascribed wholly to 
the crown's having found the means of substituting influence to 
authority, or the art of gaining a majority in one or the other of 
the two houses, to the necessity of exerting a prerogative which 
could seldom be exerted without hazarding some degree of nation- 
al agitation. The qualified negative of the president, differs wide- 
ly from this absolute negative of the British sovereign ; and tallies 
exactly with the revisionary authority of the council of revision of 
this state, of which the governor is a constituent part. In this re- 
spect, the power of the president would exceed that of the gov- 
euor of New York ; because the former would possess, singly, 
what the latter shares with the chancellor and judges j but it would 



THE FEDERALIST. 317 

be precisely the same with that of the governor of Massachusetts, 
whose constitntioii, as to this article, seems to have been the orig- 
inal from which the convention have copied. 

The president is to be the " commander in chief of the army 
" and navy of the United States, and of the miUtia of the several 
'' states, when called into the actual service of the United States. 
" He is to have power to grant reprieves and pardons for offences 
" against the United States, except in cases of impeachment * to 
" recommend to the consideration of congress such measures as he 
" shall judge necessary an^ expedient ; to convene, on extraordi- 
" nary occasions, both houses of the legislature, or either of them, 
^' and, in case of disagreement between them with respect to the 
" time of adjournment, to adjourn them to such time as he shall 
" think proper ; to take care that the laws be faithfully executed ; 
"and to commission all officers of the United States." In most 
of these particulars, the power of the president will resemble equal- 
ly that of the king of Great Britain, and of the governor of New 
York. The most material points of difference are these : — First. 
The president will have only the occasional command of such part 
of the militia of the nation, as by legislative provision may be call- 
ed into the actual service of the union. The king of Great Britain, 
and the governor of New York, have at all times the entire com- 
mand of all the militia within their several jurisdictions. In this 
article, therefore, the power of the president would be inferior to 
that of either the monarch, or the governor. Second. The presi- 
dent is to be commander in chief of the army and navy of the 
United States. In this respect, his authority would be nominally 
the same with that of the king of Great Britain, but in substance 
much inferior to it. It would amount to nothing more than the 
supreme command and direction of the military and naval forces, 
as first general and admiral of the confederacy : while that of the 
British king extends to the declaring' of war and to the raising 
and regulating of fleets and armies; all which by the constitu- 
tion under consideration, would appertain to the legislature.* The 
governor of New York, on the other hand, is by the constitution 
of the state vested only with the command of its militia and navy. 
But the constitutions of several of the states, expressly declare 
their governors to be commatiders in chief, as well of the army as 

* A writer in a Pennsylvania paper, under the signature of Tamony, has assert- 
ed that the king of Great Britain owes his prerogative, as commander in chief, to 
an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this 
respect, is immemorial, and was only disputed, " contrary to all reason and prece- 
" dent," as Blackstone, vol. 1, page 262, expresses it, by the long parliament of 
Charles first : but by the statute the 13th of Charles second, chap. 6, it was de- 
clared to be in the king alone, for that the sole supreme government and command 
of the militia within his majesty's realms and dominions, and of all forces by sea 
and land, and of all forts and places of strength, ever was and is the undoubted 
right of his majesty and his royal predecessors, kings and queens of England, and 
that both or either house of parliament cannot nor ought to pretend to the same. 



318 THE FEDERALIST. 

navy ; and it may well be a question, whether those of New Hamp- 
shire and Massachusetts, in particular, do not, in this instance, con- 
fer larger powers upon their respective governors, than could be 
claimed by a president of the United States. Third. The power 
of the president, in respect to pardons, would extend to all cases, 
except those of impeachment. The governor of New York may 
pardon in all cases, even in those of impeachment, except for trea- 
son and murder. Is not the power of the governor, in this article, 
on a calculation of political consequences, greater thau that of the 
president ? All conspiracies and plots against the government, 
which have not been matured into actual treason, may be screened 
from punishment of every kind, by the interposition of the prerog- 
ative of pardoning. If a governor of New York, therefore, should 
be at the head of any such conspiracy, until the design had been 
ripened into actual hostility, he could insure his accomplices and 
adherents an entire impunity. A president of the union, on the 
other hand, though he may even pardon treason, when prosecuted 
in the ordinary course of law, could shelter no offender, in any 
degree, from the effects of impeachment and conviction. Would 
not the prospect of a total indemnity for all the preliminary steps, 
be a greater temptation to undertake, and persevere in an enter- 
prise against the public liberty, than the mere prospect of an ex- 
emption from death and confiscation, if the final execution of the 
design, upon an actual appeal to arms, should miscarry ? Would 
this last expectation have any influence at all, when the probability 
was computed, that the person who was to afford that exemption 
might himself be involved in the consequences of the measure ; 
and might be incapacitated by his agency in it, from affording the 
desired impunity ? The better to judge of this matter, it will be 
necessary to recollect, that by the proposed constitution, the of- 
fence of treason is limited "to levying war upon the United 
" States, and adhering to their enemies, giving them aid and 
comfort ;" and that by the laws of New York, it is confined with- 
in similar bounds. Fourth. The president can only adjourn the 
national legislature, in the single case of disagreement about the 
time of adjournment. The British government may prorogue 
or even dissolve the parliament. The governor of New York 
may also prorogue the legislature of this state for a limited time ; 
a prerogative which, in certain situations, may be employed to 
very important purposes. 

The president is to have power, with the advice and consent of 
the senate, to make treaties, provided two thirds of the senators 
present concur. The king of Great Britain is the sole and abso- 
lute representative of the nation, in all foreign transactions. 
He can of his own accord make treaties of peace, commerce, al- 
liance, and of every other description. It has been insinuated, 
that Iiis authority in this respect is not conclusive, and that his 



THE FEDERALIST. 319 

conventions with foreign powers are subject to the revision, and 
stand in need of the ratification of parMament. But I believe 
this doctrine was never heard of, until it was broached upon the 
present occasion. Every jurist* of that kingdom, and every other 
man acquainted with its constitution, knows, as an established fact, 
that the prerogative of making treaties exists in the crown in its 
utmost plenitude ; and that the compacts entered into by the royal 
authority have the most complete legal validity and perfection, in- 
dependent of any other sanction. The parliament, it is true, is 
sometimes seen employing itself in altering the existing laws to con- 
form them to the stipulations in a new treaty ; and this may have 
possibly given birth to the imagination, that its cooperation, was 
necessary to the obligatory efficacy of the treaty. But this parlia- 
mentary interposition proceeds from a different cause ; from the 
necessity^of adjusting a most artificial and intricate system of rev- 
enue and conimercial laws, to the changes made in them by the 
operation of the treaty; and of adapting new provisions and pre- 
cautions to the new state of things, to keep the machine from run- 
ning into disorder. In this respect, therefore, there is no compar- 
ison between the intended power of the president, and the actual 
povi^er of the British sovereign. The one can perform alone what 
the other can only do with the concurrence of a branch of the leg- 
islature. It must be admitted', that in this instance, the power of^ 
the federal executive would exceed that of any state executive. 
But this arises naturally from the exclusive possession by the union 
of that part of the sovereign power which relates to treaties. If 
the confederacy were to be dissolved, it would become a question, 
whether the executives of the several states were not solely in- 
vested with that delicate and important prerogative. 

The president is also to be authorized to receive ambassadors, 
and other public ministers. This, though it has been a rich theme 
of declamation, is more a matter of dignity than of authority. It 
is a circumstance which will be without consequetice in the ad- 
ministration of the government ; and it was far more convenient 
that it should be arranged in this manner, than that there should 
be a necessity of convening the legislature, or one of its branch- 
es, upon every arrival of a foreign minister; though it were mere- 
ly to take the place of a departed predecessor. 

The president is to nominate, and with the advice and consent 
of the senate^ to appoint ambassadors and other public ministers, 
judges of the supreme court, and in general all officers of the 
United States established by law, and whose appointments are not 
otherwise provided for by the constitution. The king of Great 
Britain is emphatically and truly styled the fountain of honor. He 
not only appoints to all offices, but can create offices. He can 
confer titles of nobility at pleasure ; and has the disposal of an 

* Vide Blackstone's Commentaries, vol. 1, p. 257. 



320 THE FEDERALIST. 

immense number of church preferments. There is evidently a 
great inferiority in the power of the president, in this particular, to 
that of the British king ; nor is it equal to that of the governor of 
New York, if we are to interpret the meaning of the constitution 
of the state by the practice which has obtained under it. The 
power of appointment is with us lodged in a council, composed of 
the governor and four members of the senate, chosen by the as- 
sembly. The governor claims^ and has frequently exercised the 
right of nomination, and is entitled to a casting vote in the ap- 
pointment. If he really has the right of nominating, his author^ 
ity is in this respect equal to that of the president, and exceeds it 
in the article of the casting vote. In the national government, if 
the senate should be divided, no appointment could be made : in the 
government of New York, if the coiiucil should be divided, the gov- 
ernor can turn the scale, and confirm his own nomination.* If 
we compare the publicity which must necessarily attend the mode 
of appointment by the president and an entire branch of the na- 
tional legislature, with the privacy in the mode of appointment by 
the governor of New York, closeted in a secret apartment with at 
mo^ four, and frequently with- only two persons ; and if we at the 
same time consider, how much more easy it must be to influence 
the small number of which a council of appointment consists, than 
the considerable number of which the national senate would con- 
sist, we cannot hesitate to pronounce, that the power of the chief 
magistrate of this state, in the disposition of offices, must, in prac- 
tice, be greatly superior to that of the chief magistrate of the union. 

Hence it appears, that except as to the concurrent authority of 
the president in the article of treaties, it would be difficult to de- 
termine whether that magistrate would, in the aggregate, possess^ 
more or less power than the governor of Nev/ York. And it ap- 
pears yet more unequivocally, that there is no pretence forthe jpa- 
rallel which has been attempted between him and the king of 
Great Britain. But to render the contrast, in this respect, still 
more striking, it may be of use to throw the principal circumstan- 
ces of dissimilitude into a closer group. 

The president of the United States would be an officer elected 
by the people for four years ; the king of Great Britain is a per- 
petual and hereditary prince. The one would be amenable to 
personal punishment and disgrace ; the person of the other is sacred 
and inviolable. The one would have a qualijied negative upon 
the acts of the legislative body ; the other has aii absolute negative. 
The one would have a right to command the military and naval 

* Candor, however, demands an acknowledgment, that I do not think the claim 
of the governor to a right of nomination well founded. Yet it is always justifia- 
ble to reason from the practice of a government, till its propriety has been consti- 
tutionally questioned. And independent of this claim, when we take into view 
t)ie other considerations, and pursue them through all their consequences, we shall 
tie inclined to draw much the same conclusion. 



THE FEDERALIST. 321 

forces of the nation ^ the other, in addition to this right, possesses 
that of declaring war, and of raising and regulating fleets and 
armies by his own authority. The one woidd have a concurrent 
power with a branch of the legislature in the formation of treaties 
the other is the solef^possesser of the power of making treaties; 
The one would have a like concurrent authority in oppointing to 
offices : the other is the sole author of all appointments. The one 
can confer no privileges whatever; the other can mak<3 denizens 
of aliens, noblemen of commoners ; can erect corporations with all 
the rights incident to corporate bodies. The one can prescribe no 
rules concerning the commerce or currency of the nation : the 
other is in several respects the arbiter of commerce, and in this ca- 
pacity can establish markets and fairs, can regulate weights and 
measures, can lay embargoes for a limited time, can com money, 
can authorise or prohibit the circulation of foreign coin. The one 
has no particle of spiritual jurisdiction : the other is the supreme 
tiead and governor of the Bational church ! What answer shall 
we give to those who would persuade us, that things so unlike re^ 
semble each other ?—~ The same (hat ought to be given to those 
who tell us, that a government, the whole power of which would 
be in the hands of the elective and j^eriodicat servants of the peo- 
ple, is an aristocracy, a monarchy, and a despotism. PUBLIUS. ^ 



BY ALEXANDER HAMILTON. 



THE SAME YiEW CONTINUED, IN RELATION TO THE UNITY OP THE 
EXECUTIVE, AND WITH AN EXAMINATION OF THE PROJECT OF AN 
EXECUTIVE COUNCru 

There is an idea, which is not williout its advocates, that a vig- 
orous executive is inconsistent with the genius of I'epublican gov- 
ernment. The etiiightened wellwishers to this species of govern- 
ment must at least hope that the suppositioti is destitute of foun- 
dation ,' since they can never admit its truth, without, at the same 
time, admitting the condemnation of their own principles. Energy 
in the executive is a leading character m the definition of good 
government. It is essential to the protection of the community 
against foreign attacks ; it is not less essential to the steady admin- 
istration of the laws ; to the protection of property against those 
irregular and high-handed combinations which sometimes interrupt 
the ordinary course of justice ; to the security of liberty against 
the enterprises and assaults of ambition, of faction, and of anar- 

41 



322 THE FEDERALIST. 

chy_, Every man, the least conversant in Roman story, knows, 
how often that republic was obUged to take refuge in the absohite 
power of a single man, under the formidable title of dictator, as 
well against the intrigues of ambitious individuals, who aspire to 
the tyrariny, and the seditions of whoJe classo* of the community, 
whose conduct threatened the existence of all government, as 
against the invasions of external enemies who menaced the con- 
quest and destruction of Rome, 

There can be no need, however, to multiply arguments or ex- 
amples on this head. A feeble executive implies a feeble execu- 
tion of the government. A feeble execution is but another phrase 
for a bad execution : and a government ill executed, whatever it 
may be in theory, must be, in practice, a bad government. 

Taking it for granted, therefore, that all men of sense will agree 
in the necessity of an energetic executive, it will only remain to 
inquire, what are the ingredients, which constitute this energy? 
How far can they be combined with those other ingredients which 
constitute safety in the republican sense ? And how far does this 
combination characterize the plan which has been reported by the 
convention ? 

The ingredients which constitute energy in the executive, are, 
unity ; duration ; an adequate provision for its support ; competent 
powers. 

The ingredients which constitute safety in the republican sense 
are a due dependence ott the people ; a due responsibility. 

Those politicians and statesmen who have been the most cele- 
brated for the soundness of their principles, and for the justness 
of their views, have declared in favor of a single executive, and a 
numerous legislature. They have with great propriety, considered 
energy as the most necessary qualification of the former, and have 
regarded this as most applicable to power in a single hand ; while 
Ihey have with equal propriety, considered the latter as best adapt- 
ed to deliberation and wisdom, and best calculated to conciliate 
the confidence of the people, and to secure their privileges and in- 
terests. 

That unity is conducive to energy, will not be disputed. Decis- 
ion, activity, secrecy, and despatch, will generally characterize the 
proceedings of one man, in a much more eminent degree than the 
proceedings of any greater number ; and in proportion as the num- 
ber is increased, these qualities will be diminished. 

This unity may be destroyed in two ways ; either by vesting the 
power in two or more magistrates,- of eqmal dignity and authority ; 
or by vesting it ostensibly in one man, subject in whole or in part, 
to the control and cooperation of others, in the capacity of coun- 
sellors to him. Of the first, the two consuls of Rome may serve 
as an example : of the last, we shall find examples in the constitu- 
tions of several of the states. New York and New Jersey, if I 



THE FEDERALIST. 323 

recollect right, are the only states which have entrusted the ex- 
ecutive authority wholly to single men.* Both these methods 
of destroying the unity of the executive have their partisans; 
but the votaries of an executive council are the most numerous. 
They are both liable, if not to equal, to similar objections, and 
may in most lights be examined in conjunction. 

The experience of other nations will afford little instruction on 
this head. As far however, as it teaches any thing, it teaches us 
not to be enamored of plurality in the executive. We have seen 
that the Achgeans, on an experiment of two praetors, were induced 
to abolish one. The Roman history records many instances of 
mischiefs to the republic from the dissensions between the consuls, 
and between the military tribunes, who were at times substituted 
to the consuls. But it gives us no specimens of any peculiar ad- 
vantages derived to the state, from the plurality of those magis- 
trates. That the dissensions between them were not more fre- 
quent or more fatal, is matter of astonishment, until we advert to 
the singular position in which the republic was almost continually 
placed, and to the prudent policy pointed out by the circumstances 
of the state, and pursued by the consuls, of making a division of 
the government between them. The patricians engaged in a per- 
petual struggle with the plebeians, for the preservation of their an- 
cient authorities and dignities ; the consuls, who were generally 
chosen out of the former body, were commonly united by the per- 
sonal interest they had in the defence of the privileges of their 
order. In addition to this motive of union, after the arms of the 
republic had considerably expanded the bounds of its empire, it 
became an established custom with the consuls to divide the ad- 
ministration between themselves by lot ; one of them remaining at 
Rome to govern the city and its environs ; the other taking the 
command in more distant provinces. This expedient must, no 
doubt, have had great influence in preventing those collisions and 
rivalships which might otherwise have embroiled the public. 

But quitting the dim light of historical research, and attaching 
ourselves purely to the dictates of reason and good sense, we shall 
discover much greater cause to reject than to approve the idea of 
plin-ality in the executive, under any modification whatever. 

Wherever two or more persons are engaged in any common en- 
terprise or pursuit, there is always danger of difference of opinion. 
If „it be a public trust or office, in which they are clothed with 
equal dignity and authority, there is peculiar danger of personal 
emulation ayd even animosity. From either, and especially from 
all these causes, the most bitter dissensions are apt to spring. 
Whenever these happen, they lessen the respectability, weaken the 

* New York has no council except for the single purpose of appointing to ofS- 
-ces : New Jersey has a council whom the governor may consult. But I think, 
from the terms of the constitution, their resolutions do not bind him. 



324 THE FEDERALIST. 

authority, and distract the plans and operations of those whora 
they divide. If they should unfortunately assail the supreme ex- 
ecutive magistracy of a country, consisting of a phirality of per- 
sons, they Riight impede or frustrate the most important measures 
of the government in the most critical emergencies of the state. 
And what is still worse, they might split the community into 
violent and irreconcilable factions, adhering differently to the 
different individuals, who composed the magistracy. 

Men often oppose a thing, merely because they haVe had no 
agency in planning it, or because it may have been planned by 
those whom they dislike. Bui if they have been consulted, and 
have happened to disapprove, opposition then becomes, in theif es- 
timation, an indispensable duty of self-love. They seem to think 
themselves bound in honor, and by all the motives of personal in- 
fallibility, to defeat the success of v/hat has been resoked upon, 
contrary to their sentiments. Men of upright and benevolent tem- 
pers have too many opportunities of remarking, with horror, to 
ivhat desperate lengths this disposition is sometimes carried, and 
how often the great interests of society are sacrificed to the vanity, 
to the eoriceit, and to the obstinacy of individuals, who have credit 
enough to make their passions and their caprices interesting to 
mankind. Perhaps the question now before the pnbJic may, in its 
consequences, afford melancholy proofs of the effects of this de- 
spicable frailty, or rather detestable vice in the human character. 

Kpon the principles of a free government, inconveniences from 
the source just mentioned, must necessarily be submitted to in the 
formation of the legislature ; but it is unnecessary, and therefore 
unwise, to introduce them into the constitution of the executive. 
It is here too, that they may be most pernicious. In the legisla- 
ture, pronjptitude of decision is oftener an evil than a benefit. 
The differences of opinion, and the jarrings of parties in that de- 
partment of the government, though they may sometimes obstruct 
salutary plans, yet often promote deliberation and circumspection ; 
and serve to check excesses in the majority. When a resohition 
too is once taken, the opposition must be at an end. That resolu- 
tion is a law, and resistance to it punishable. But no favorable 
circumstances palliate, or atone for the disadvantages of dissension 
in the executive department. Here, they are pure and unmixed. 
There is no point at which they cease to operate. They serve to 
embarrass and weaken the execution of the plan or measure to 
which they relate, from the first step to the final conclusion of it. 
They constantly counteract those qualities in the executive, which 
are the most necessary ingredients in its composition— -vigor 
and expedition; and this without any counterbalancing good. 
In the conduct of war, in which the energy of the executive is 
the bulwark of the national security, every thing would be to 
be apprehended from its plurality. 



THE FEDERALIST. 325 

Tt must be confessed, that these observations apply with princi- 
pal weight to the first case supposed, that is, to a plurality of mag- 
istrates of equal dignity and authority ; a scheme, the advocates 
for which are not likely to form a numerous sect ; but they apply, 
though not with equal, yet with considerable weight to the project 
of a council, whose concurrence is made constitutionally necessary 
to the operations of the ostensible executive. An artful cabal in 
that council would be able to distract and to enervate the whole 
system of administration. If no such cabal should exist, the mere 
diversity of views and opinions would alone be sufficient to tinc- 
ture the exercise of the executive authority, with a spirit of hab- 
itual feebleness and dilatoriness. 

But one of the weightiest objections to a plurality in the execu- 
tive, and which lies as much against the last as the first plan, is, 
that it tends to conceal faults, and destroy responsibility. Respon- 
sibility is of two kinds, to censure and to punishment. The first 
is the most important of the two ; especially in an elective office. 
Men in public trust will much oftener act in such a manner as to 
render them unworthy of being any longer trusted, than in such a 
manner as to make them obnoxious to legal punishment. But the 
multiplication of the executive adds to the difficulty of detection 
in either case. It often becomes impossible, amidst mutual accu- 
sations, to determine, on whom the blame or the punishment of a 
pernicious measure, or series of pernicious measures ought really 
to fall. It is shifted from one to another with so much dexterity, 
and under such plausible appearances, that the public opinion is 
left in suspense about the real author. The circumstances which 
may have led to any national miscarriage or misfortune, are some- 
times so complicated, that where there are a iiumber of actors who 
may have had different degrees and kinds of agency, though we 
may clearly see upon, the whole that there has been mismanage- 
ment, yet it may be impracticable to pit)nounce, to whose account . 
the evil which may have been incurred is truly chargeable. 

"I was overruled by my council. The council was so divided 
" in their opinions, that it was impossible to obtain any better reso- 
"lution on the point," These and similar pretexts are constantly 
at hand, whether true or false. And who is there, that will cither 
take the trouble or incur the odium, of a strict scrutiny into the 
secret springs of the transaction ? Should there be found a citizen 
zealous enough to undertake the unpromising task, if there hap- 
pen to be a collusion between the parties concerned, how easy is it 
to clothe the circumstances with so much ambiguity, as to render 
it uncertain what was the precise conduct of any of those parties ? 

•In the single instance in which the governor of this state is 
coupled with a council, that is, in the appointment to offices, we 
have seen the mischiefs of it in the view now under consideration. 
Scandalous appointments to important offices have been made. 



326 THE FEDERALIST. 

Some cases indeed have been so flagrant that all parties have 
agreed in the impropriety of the thing. When inquiry has been 
made, the blame has been laid by the governor on the members of 
the council ; who on their part, have charged it upon his nomina- 
tion : while the people remain altogether at a loss to determine, by 
whose influence their interests have been committed to hands so 
manifestly improper. In tenderness to individuals, I forbear to 
descend to particulars. 

It is evident from these considerations, that the plurality of the 
executive tends to deprive the people of the two greatest securities 
they can have for the faithful exercise of any delegated power : — 
First, the restraints of public opinion, which lose their efficacy as 
well on account of the division of the censure attendant on bad 
measures among a number, as on account of the uncertainty on 
whom it ought to fall ; and, secondly] the opportunity of discover- 
ing with facility and clearness the misconduct of the persons they 
trust, in order either to their removal from office, or to their actual 
punishment in cases which admit of it. 

In England, the king is a perpetual magistrate : and it is a max- 
im which has obtained for the sake of the public peace, that he is 
unaccountable for his administration, and his person sacred. Noth- 
ing, therefore, can be wiser in that kingdom, than to annex to 
the king a constitutional council, who may be responsible to the 
nation for the advice they give. Without this, there would be no 
responsibility whatever in the executive department, an idea inad- 
missible in a free government. But even there, the king is not 
bound by the resolutions of his council, though they are answer- 
able for the advice they give. He is the absolute master of his 
own conduct in the exercise of his office ; and may observe or 
disregard the counsel given to him at his sole discretion. 

But in a republic, where every magistrate ought to be personally 
responsible for his behavior in office, the reason, which in the Brit- 
ish constitution dictates the propriety of a council, not only ceases 
to apply, but turns against the institution. In the monarchy of 
Great Britain, it furnishes a substitute for the prohibited responsi- 
bility of the chief magistrate ; which serves in some degree as a 
hostage to the national justice for his good behavior. In the 
American republic, it would serve to destroy or would greatly di- 
minish the intended and necessary responsibility of the chief 
magistrate himself. 

The idea of a council to the.executive, which has so generally 
obtained in the state constitutions, has been derived from that max- 
im of republican jealousy v/hich considers power as safer iti the 
hands of a number of men than of a single man. If the maxim 
should be admitted to be applicable to the case, I should contend, 
that the advantage on that side would not counterbalance the 
numerous disadvantages on the opposite side. But I do not think 



THE FEDERALIST. 327 

the rule at all applicable to the executive power. I clearly con- 
cur in opinion in this particular with a writer whom the celebra- 
ted Junius pronounces to be "deep, solid, and ingenious," that 
"the executive power is more easily confined when it is one;"* 
that it is far more safe there should be a single object for the jeal- 
ousy and watchfulness of the people ; in a word, that all multipli- 
cation, of the executive, is rather dangerous than friendly to liberty, 

A little consideration will satisfy us, that the species of security 
sought for in the muhiplication of the executive, is unattainable. 
Numbers must be so great as to render combination difficult ; or 
they are rather a source of danger than of security. The united 
credit and influence of several individuals must be more formida- 
ble to liberty, than the credit and influence of either of them sep- 
arately. When power, therefore, is placed in the hands of so small 
a number of men, as to admit of their interests and views being 
easily combined in a common enterprise, by an artful leader, it be- 
comes more liable to abuse, and more dangerous when abused, than 
if it be lodged in the hands of one man ; who, from the very cir- 
cunfistance of his being alone, will be more narrowly watched and 
more readily suspected, and who cannot unite so great a mass of 
influence as when he is associated with others. 'I'he decemvirs of 
Rome, whose name denotes their number,f were more to be dread- 
ed in their usurpation than any one of them would have been. 
No person would think of proposing an executive much more nu- 
merous than that body ; from six to a dozen have been suggested 
for the number of the council. The extreme of these numbers, is 
not too great for an (?asy combination ; and from such a combina- 
tion, America would have more to fear, than from the ambition of 
any single individual. A council to a magistrate, who is himself 
responsible for what he does, are generally nothing better than a 
clog upon his good intentions ; are often the instruments and ac- 
complices of his bad ; and are almost always a cloak to his faults. 

I forbear to dwell upon the subject of expense ; though it be 
evident that if the council should be numerous enough to answer 
the principal end aimed at by the institution, the salaries of the 
members, who must be drawn from their homes to reside at the 
seat of government, would form an item in the catalogue of pub- 
lic expenditures, too serious to be incurred for aii object of equiv- 
ocal utility. 

I will only add, that, prior to the appearance of the constitution, 
I rarely met with an intelligent man from any of the states, who 
did not admit, as the result of experience, that the urnty of the 
executive of this state was one of the best of the distinguishing 
features of our constitution. PUBLIUS. 

*DeLoline. tTen. 



-• 



328 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 

THE SAME VIEW COXT'iNUED, IN REGARD TO THE DURATION OF THE 

OFFICE. 

Duration in office, has been mentioned as the second reqnisite 
to the energy of the executive authority. This has relation to two 
objects: to the personal firmness of the chief magistrate, in tlie 
employment of his constitutional powers ; and to the stability of 
the system of administration, wliich may have been adopted under 
his auspices. With regard to the first, it must be evident, that the 
longer the duration in office, the greater will be the probability of 
obtaining so important an advantage. It is a i^eneral principle of 
Imman nature that a man will be interested in whatever he posses- 
ses, in proportion to the firmness or precariousness of the tenure 
by which he holds it : will be less attached to what he holds by a 
momentary or uncertain title, than to what he enjoys by a title du- 
rable or certain; and, of course, will be willing to risk more, for 
the sake of the one, than of the other. This remark is not less 
applicable to a political privilege, or honor, or trust, than to any 
article of ordinary property. The inference from it is, that a man 
acting in the capacity of chief magistrate, under a consciousness 
that in a very short time, he must lay down his office, will be apt 
to feel himself too little interested in it, to hazard any material 
censure or perplexity, from the independent exertion of his powers, 
or from encountering the ill-humors however transient, which may 
happen to prevail, either in a considerable part of Jlhe society it- 
self, or even in a predominant faction in the legislative body. If 
the case sljould only be, that he might lay it down, unless contin- 
ued by a new choice ; and if he should be desirous of being con- 
tinued, his wishes, conspiring with his fears, would tend still more 
powerfully to corrupt his integrity, or debase his fortitude, [n 
either case, feebleness and irresolution must be the characteristics 
of the station. 

There are some, who would be inclined to regard the servile 
pliancy of the executive, to a prevailing cm'rent, either in the com- 
munity, or in the legislature, as its best recommendation. But 
such men entertain very crude notions, as well of the purposes for 
which government was instituted, as of the true means by which 
the public happiness may be promoted. The republican principle 
demands, that the deliberate sense of the community should gov- 
ern the conduct of those to whom they enU'ust the management 
of their affairs ; but it does not require an unqualified complaisance 
to every sudden breeze of passion, or to every transient impulse 
which the people may receive from the arts of men, who flatter 
their prejudices to betray their interests. It is a just observation, 



THE FEDERALIST. 329 

that the people commonly intend the public good. This often 
applies to their very errors. Bat their good sense would despise 
the adulator who should pretend, that they always reason right 
about the 'means of promoting it. They know frorr? experience, 
that they sometimes err ; and the wonder i^, that they so seldom 
err as they do, beset as they continually are, by the wiles of para- 
sites and sycophants ; by the snares of the an:nbitious, the avari- 
cious, the desperate ; by the artifices of men who possess their 
confidence more than they deserve it ; and of those who seek to 
possess, rather than to deserve it. When occasions present them- 
selves, in which the interests of the people are at variance with 
their inclinations, it is the duty of the persons whom they have 
appointed to be the guardians of those interests, to withstand the 
temporary delusion, in order to give them time and opportunity 
for more cool and sedate reflection. Instances might be cited, in 
which a conduct of this kind has saved the people from very fatal 
consequences of their own mistakes, and has procured lasting mon- 
uments of their gratitude to the men who had courage and mag- 
nanimity enough to serve them at the peril of their displeasure. 

But however inclined we might be, to insist upon an unbound- 
ed complaisance in the executive to the inclinations of the peo- 
ple, we can with no propriety contend for a like complaisance to 
the humors of the legislature. The latter may sometimes stand 
in opposition to the former; and at other times the people may 
be entirely neutral. In either supposition, it is certainly desira- 
ble, that the executive should be in a situation to dare to act his 
own opinion with vigor and decision. 

The same rule which teaches the propriety of a partition between 
the various branches of power, teaches likewise that this partition 
ought to be so contrived as to render the one independent of the 
other. To what purpose separate the executive or the judiciary 
from the legislative, ii both the executive and the judiciary are so 
constituted as to be at the absolute devotion of the legislative ? 
Such a separation must be merely nominal, and incapable of pro- 
ducing the ends for which it was established. It is one thing to 
be subordinate to the laws, another to be dependent on the legisla- 
tive body. The first comports with, the last violates, the funda- 
mental principles of good government ; and \vhatever may be the 
forms of thfLconstitution, unites all power in the same hands. The 
tendency of the legislative authority to absorb every other, has 
been fully displayed and illustrated by examples in some preceding 
numbers. In governments purely republican, this tendency is al- 
most irresistible. The representatives of tiie people, in a popular 
assembly, seem sometimes to fancy, that they are the people them- 
selves, and betray strong symptoms of impatience and disgust at 
the least sign of opposition from any other quarter; as if the ex- 
ercise of its rights, by either the executive or judiciary, were a 

42 



330 THE FEDERALIST. 

breach of their privilege, and an outrage to their dignity. They 
often appear disposed to exert an imperious control over the other 
departments; and as they commonly have the people on their 
side, they a4ways act with such momentum, as to make it very 
difficult for the other members of the government to maintain 
the balance of the constitution. 

It may perhaps be asked, how the shortness of the duration in 
office can affect the independence of the executive on the legisla- 
ture, unless the one were possessed of the power of appointing or 
displacing the olher. One answer to this inquiry may be drawn 
from the principle already mentioned, that is, from the slender in- 
terest a man is apt to take in a short lived advantage, and the little 
inducement it affords him to e.^pose himself, on account of it, to 
any considerable inconvenience or hazard. Another answer, per- 
haps more obvious, though not more conclusive, will result from 
the circumstance of the influence of the legislative body over the 
people ; which might be employed to prevent the reelection of a 
man who, by an upright resistance to any sinister project of that 
body, should have made himself obnoxious to its resentment. 

It may be asked also, whether a duration of four years would 
answer the end proposed ; and if it would not, whether a less 
period, which would at least be recommended by greater security 
against ambitious designs, would not, for that reason, be prefera- 
ble to a longer period, which was, at the same time, too short 
for the purpose of inspiring the desired firmness and independ- 
ence of the magistrate. 

It cannot be affirmed, that a duration of four years, or any oth- 
er limited duration, would completely answer the end proposed ; 
but it would contribute towards it in a degree which would have a 
material influence upon the spirit and character of the government. 
Between the commencement and termination of such a period, 
there would always be a considerable interval, in which the pros- 
pect of an annihilation would be sufficiently remote, not to have 
an improper effect upon the conduct of a man endued with a tol- 
erable portion of fortitude ; and in which he might reasonably pro- 
mise himself, that there would be time enough before it arrived, to 
make the community sensible of the propriety of the measures he 
might incline to pursue. Though it be probable, that as he ap- 
proached the moment when the public were, by a new election, to 
signify their sense of his conduct, his confidence, and with it his 
firmness would decline ; yet both the one and the other would de- 
rive support from the opportunities which his previous continuance 
in the station had afforded him, of establishing himself in the es- 
teem and good-will of his constituents. He might then, with pru- 
dence, hazard the incurring of reproach, in proportion to the proofs 
he had given of his wisdom and integrity, and to the title he had 
acquired to the respect and attachment of his fellow-citizens. As 



THE FEDERALIST. 331 

on the one hand, a duration of four years will contribute to the 
firmness of the executive in a sufficient degree to render it a very 
valuable ingredient in the composition ; so on the other, it is not 
enough to justify any alarm for the public liberty. If a British 
house of commons, from the most feeble beginnings, from the 
mere power of assenting or disagreeing to the imposition of a 
new tax, have by rapid strides, reduced the prerogatives of the 
crown, and the privileges of the nobility, within the limits they 
conceive to be compatible with the principles of a free government, 
while th6y raised themselves to the rank and consequence of a co- 
equal branch of the legislature ; if they have been able, in one in- 
stance, to abolish both the royalty and the aristocracy, and to over- 
turn all the ancient establishments, as well in the church as state ; 
if they have been able, on a recent occasion, to make the monarch 
tremble at the prospect of an innovation* attempted by them : 
what would be to be feared from an elective magistrate of four 
years' duration, with the confined authorities of a president of 
J.he United States? What, but that he might be unequal to the 
task which the constitution assigns him ? I shall only add, that 
if his duration be such as to leave a doubt of his firmness, that 
doubt is inconsistent with a jealousy of his encroachments. 

PUBLIUS. 



BY ALEXANDER HAMILTON. . 

THE SAME VIEW CONTINUED, IN REGARD TO THE SE-ELWIBILITY 
OF THE PRESIDENT. 

The administration of government, in its largest sense, compre- 
hends all the operations of the body politic, whether legislative, ex- 
ecutive, or judiciary ; but in its most usual, and perhaps in its most 
precise signification, it is limited to executive details, and falls pe- 
culiarly within the province of the executive department. The 
actual conduct of foreign negotiations, the preparatory plans of 
finance, the application and disbursement of the public moneys in 
conformity to the general appropriations of the legislature, the ar- 
rangement of the army and navy, the direction of the operations 
of war ; these, and other matters of a like nature, constitute what 
seems to be most properly understood by the administration of gov- 
ernment. The persons, therefore, to whose immediate manage- 
ment these different matters are committed, ought to be considered 

* This was tlie case with respect to Mr. Fox's India bill, which was carried in 
the house of commons, and rejected in the house of lords, to the entire satisfac- 
^on, as it is said, of the people. 



332 THE FEDERALIST. 

as the assistants or deputies of the chief magistrate ; and on this 
account, they ought to derive their offices from his appointment, 
at least from his nomination, and to be subject to his superintend- 
ence. This view of the thing will at once suggest to us the inti-' 
mate connexion between the duration of the executive magistrate 
in office, and the stability of the system of administration. To 
undo what has been done by a predecessor, is very often consider- 
ed by a successor as the best proof he can give of his own capaci- 
ty and desert ; and in addition to this propensity, where the alter- 
ation has been the result of public choice, the person substituted 
is warranted in supposing, that the dismission of his predecessor 
has proceeded from a dislike to his measures, and that the less he 
resembles him, the more he will recommend himself to the favor 
of his constituents. These considerations, and the influence of 
personal confidences and attachments, would be likely to induce 
every new president to promote a change of men jo fill the sub- 
ordinate stations ; and these causes together could not fail to oc- 
casion a disgraceful and ruinous mutability in the administration 
of the government. 

With a positive duration of considerable extent, I connect the 
circumstances of reeligibility. The first is necessary to give the 
officer himself the inclination and the resolution to act his part 
well, and to the community time and leisure to observe the tend- 
ency of his measures, and thence to form an experimental esti- 
mate of their merits. The last is necessary to enable the peopie. 
when they see reason to approve of his conduct, to continue him 
in the station, in order to prolong the utility of his talents and 
virtues, and to secure to the government the advantage of perma- 
nency in a wise system of administration. 

Nothing appears more plausible at first sight, nor more ill-found- 
ed upon close inspection, than a scheme which in relation to the 
present point, has had some respectable advocates — I mean that 
of continuing the chief magistrate in office for a certain time, and 
then excluding him from it, either for a limited period or forever 
after. This exclusion, whether temporary or perpetual, would 
have nearly the same effects ; and these effects would be for the 
most part rather pernicious than salutary. 

One ill effect of the exclusion would be a diminution of the in- 
ducements to good behavior. There are few men who would not 
feel much less zeal in the discharge of a duty, when they were 
conscious that the advantage of the station, with which it was con- 
nected, must be relinquished at a determinate period, than when 
they were permitted to entertain a hope of obtaining by meriting, 
a continuance of them. This position will not be disputed, so. 
long as it is admitted, that the desire of reward is one of the 
strongest incentives of human conduct; or that the best security 
for the fidelity of mankind, is to make interest coincide with duty. 



THE FEDERALIST. 333 

Even the love of fame, the ruling passion of the noblest minds, 
which would prompt a man to plan and undertake extensive and 
arduous enterprises for the public benefit requiring considerable 
time to mature and perfect them, if he could flatter himself wilh 
the prospect of being allowed to finish what he had begun, would 
on the contrary, deter him from this undertaking, when he foresaw 
that he must quit the scene before he could accomplish the Work, 
.and must commit that, together with his own reputation, to hands 
which might be unequal or unfriendly to the task. The most to 
be expected from the generality of men, in such a situation, is the 
negative merit 6f not doing harm, instead of the positive merit 
of doing good. 

Another ill effect of the exclusion would be the temptation to 
sordid views, to peculation, and in some instances to usm-pation. 
An avaricious man, who might happen to fill the office, looking 
forward to a time when he must at all events yield up the advan- 
tages he enjoyed, would feel a propensity, not easy to be resisted 
by such a man. to make the best use of his opportunities, while 
they lasted; and might not scruple to have recourse to the most 
corrupt expedients to make the harvest as abundant as it was tran- 
sitory ; though the same person, probably, with a different pros- 
pect before him, might content himself with the regular emokiments 
of his station, and might even be unwilUng to risk the consequen- 
ces of an abuse of his opportunities. His avarice might be a guard 
upon his avarice. Add to this, that the same man might be vain 
or ambitious, as well as avaricious. And if he could expect to 
prolong his honors by his good conduct, he might hesitate to sac- 
rifice his appetite for them to his appetite for gain. But with the 
prospect before him of approaching an inevitable annihilation, his 
avarice would be likely to get the victory over his caution, his 
vanity, or his ambition. 

An ambitious man too, finding himself seated on the summit of 
his country's honors, looking forward to the time at which he must 
descend from the exalted eminence forever, and reflecting that no 
exertion of merit on his part could save him from the unwelcome 
reverse, would be much more violently tempted to embrace a fa- 
vorable conjuncture for attempting the prolongation of his power, 
at every personal hazard, than if he had the probability of answer- 
ing the same end by doing his duty. 

Would it prorhote the peace of the community, or the stability 
of the government, to have half a dozen men who had had credit 
enough to raise themselves to the seat of the supreme magistracy, 
wandering among the people like discontented ghosts, and sigh- 
ing for a place which they were destined never more to possess? 

A third ill effect of the exclusion would be, the depriving the 
community of the advantage of the experience gained by the 
chief magistrate in the exercise of his office'. That experience is 



334 THE FEDERALIST. 

the parent of wisdom, is an adage, the truth of which is recognised 
by the wisest as well as the simplest of mankind. What more de- 
sirable or more essential than this quality in the governors of na- 
tions ? Where more desirable or more essential, than in the first 
magistrate of a nation ? Can it be wise to put this desirable and 
essential quality under the ban of the constitution ; and to declare 
that the moment it is acquired, its possessor shall be compelled to 
abandon the station in which it was acquired, and to which it is 
adapted ? This, nevertheless, is the precise import of all those 
regulations which exclude men from serving their country, by the 
choice of their fellow-citizens, after they have by a course of ser- 
vice fitted themselves for doing it with a greater degree of utility. 

A fourth ill effect of the exclusion would be, the banishing men 
from stations in which, in certain emergencies of the state, their 
presence might be of the greatest moment to the public interest or 
safety. There is no nation which has^not, at one period or anoth- 
er, experienced an absolute necessity of the services of particular 
men, in particular situations, perhaps it would not be too strong to 
say, to the preservation of its political existence. How unwise, 
therefore, must be every such self-denying ordinance, as serves to 
prohibit a nation from making use of its own citizens, in the man- 
ner best suited to its exigencies and circumstances? .Without sup- 
posing the personal essentiality of the man, it is evident that a 
change of the chief magistrate, at the breaking out of a war, or 
any similar crisis, for another, even of equal merit, would at all 
times be detrimental to the community : inasmuch as it would 
substitute inexperience to experience, and would tend to unhinge 
and set afloat the already -settled train of the administration. 

A fifth ill effect of the exclusion would be, that it would oper- 
ate as a constitutional interdiction of stability in the administra- 
tion. By inducing the necessity of a change of men, in the first 
office of the nation, it would necessarily lead to a mutability of 
measures. It is not generally to be expected, that men will vary, 
and measures remain uniform. The cotitrary is the usual course 
of things. And we need not be apprehensive that there will be 
too much stability, while there is even the option of changing ; nor 
need we desire to prohibit the people from continuing their con- 
fidence where they think it may be safely placed, and where by 
constat)cy on their part, they may obviate the fatal inconveniences 
of fluctuating councils and a variable policy. 

These are some of the disadvantages which would flow from 
the principle of exclusion. They apply most forcibly to the scheme 
of a perpetual exclusion ; but when we consider, that even a par- 
tial one would always render the readmission of the person a re- 
mote and precarious object, the t.bservations which have been 
made will apply nearly as fully to one case as to the other. 

What are the advantages promised to counterbalance the evils ? 



THE FEDERALIST. 335 

They are represented to be : 1st. Greater independence in the 
magistrate ; 2nd, Greater security to the people. Unless the ex- 
clusion be perpetual, there will be no pretence to infer the first ad- 
vantage. But even in that case, may he have no object beyond his 
present station, to which he may sacrifice his independence ? May 
he have no connexions, no friends, for whom he may sacrifice it ? 
May he not be less willing, by a firm conduct, to make personal 
enemies, when he acts under the impression, that a time is fast 
approaching, on the arrival of which he not only may, but must 
be exposed to their resentments, upon an equal, perhaps upon an 
iriferior footing ? It is i]ot an easy point to determine whether 
his independence would be most promoted or impaired by such an 
arrangement. 

As to the second supposed advantage, there is still greater reason 
to entertain doubts concerning it, especially if the exclusion were 
to be perpetual. In this case, as already intimated, a man of ir- 
regular ambition, of whom alone there could be reason in any case 
to entertain apprehensions, would with infinite reluctance, yield to 
the necessity of taking his leave forever of a post, in which his 
passion for power and preeminence had acquired the force of 
habit. And if he had been fortunate or adroit enough to concili- 
ate the good-will of the people, he might induce them to consider 
as a very odious and unjustifiable restraint upon themselves, a pro- 
vision which was calculated to debar them orthe right of giving a 
fresh proof of their attachment to a favorite. There may be con- 
ceived circumstances in which this disgust of the people second- 
ing the thwarted ambition of such a favorite, might occasion 
greater danger to liberty, than could ever reasonably be dreaded 
from the possibility of a perpetuation in office, by the voluntary 
suflrages of the community, exercising a constitutional privilege. 

There is an excess of refinement in the idea of disabling the 
people to continue in office men who had entitled themselves, in 
their opinion, to approbation and confidence ; the advantages of 
which are at best speculative and equivocal, and are overbalanced 
by disadvantages far more certain and decisive. 

PUBLIUS. 



336 THE FEDERALIST. 

3srxj3Sd::BEi^ l^szxiiii. 

BY ALEXANDER HAMILTON. 

THE SAME VIEW CONTINUED, IN RELATION T,0 THE PROVISIONS CON- 
CERNING SUPPORT, AND THE POWER OF THE NEGATIVE. 

The third ingredient towards constituting the vigor of the ex- 
ecutive authority, is an adequate provision for its support. It is 
evident, that without proper attention to this article, the separation 
of the executive from the legislative department, would be merely 
nominal and nugatory. The legislature, with a discretionary pow- 
er over the salary and emoluments of the chief magistrate, could 
render him as obsequious to their will, as they might think proper 
to make him. They might in most cases, either reduce him by 
famine, or tempt him by largesses, to surrender at discretion his 
judgment to their inclinations. These expressions, taken in all the 
latitude of the terms, would no doubt convey more than is intend- 
ed. There are men who could neither be distressed, nor won, into 
a sacrifice of their duty ; but this stern virtue is the growth of few 
soils; and in the main it will be found, that a power over a man's 
support, is a power over his will. If it were necessary to confirm 
so plain a truth by facts, examples would not be wanting, even 
in this country, of the intimidation or seduction of the executive 
by the terrors, or aHurements, of the pecuniary arrangements of 
the legislative body. 

It is not easy, therefore, to commend too highly the judicious 
attention whicli has been paid to this subject in the proposed con- 
stitution. It is there provided, that " the president of the United 
States shall, at stated times, receive for his service a compensa- 
" tiou which shall neither he increased, nor diminished, during 
" the period for which he shall have been elected ; and he shall 
" not receive within that period any other emolument from the 
" United States, or any of them." It is impossible to imagine any 
provision which would have been more eligible than this. The 
legislature, on the appointment of a president, is once for all to de- 
clare what shall be the compensation for his services during the 
time for which he shall have been elected. This done they will 
have no power to alter it, either by increase or diminution, till a 
new period of service by a new election commences. They can 
neither weaken his fortitude by operating upon his necessities, nor 
corrupt his integrity by appealing to his avarice. Neither the union, 
nor any of its members, will be at liberty to give, nor will he be 
at liberty to receive any other emolument than that which may 
have been determined by the first act. He can of course have no 
pecuniary inducement 1o renounce or desert ^he independence in- 
tended for him by the constitution. 

The last of theTequisites to energy, which have been enumerat- 



THE FEDERALIST. 337 

<8cl, is competent powers. Let us proceed to consider those which 
are proposed to be vested in the president of the United Stales. 

The first thing that offers itself to our observation, is the quali- 
fied negative of the president upon the acts or resohitions of the 
two houses of the legislature ; or. in other words, his power of 
returning all bills with objections, which w'lW have the effect of 
preventing their becoming laws, unless they should afterwards be 
ratified by two thirds of each of the component members of the 
legislative body. 

The propensit5A of the legislative department to intrude upon the 
rights, and to absorb the powers, of the other departments, has 
been already more than once suggested ; the insufficiency of a 
mere parchment delineation of the boundaries of each, has also 
been remarked upon ; and the necessity of furnishing each with 
constitutional arms for its own defence, has been inferred and 
proved. From these clear and indubitable principles, results the 
propriety of a negative, either absolute or qualified, in the execu- 
tive, upors the acts of the legislative branches. Without the one 
or the other, the former would be absolutely unable to defend him- 
self against the depredations of the latter. He might gradually be 
stripped of his authorities by successive resolutions, or annihila- 
ted by a single vote. And in the one niode or the other, the legisla- 
tive and executive powers might speedily come to be blended in 
(he same hands. If even no propensity had ever discovered it- 
self in the legislative body, to invade the rights of the executive, 
the rules of just reasoning and theoretic propriety would of them- 
selves teach us, that the one ought not to be left at the mercy oif 
4he other, but ought to possess a constitutional and effectual 
power of self-defence. 

But the povv^er in question has a further use. It not only serves 
as a shield to the executive, but it furnishes an additional security 
against the enaction of improper laws. It establishes a salutary 
check upon the legislative body, calculated to guard the commu- 
nity agairjst the effects of faction, precipitancy, or of anj'' impulse 
unfriendly to the public good, whicli may happen to influence a- 
majority of that body. 

The propriety of a negative has, upon sotne occasions, been 
combated by an observation, that it was not to be presumed a 
single man would possess more virtue and wisdom than a number 
of men t and that unless this presumption should be entertained, 
5t would be improper to give the executive magistrate any species 
of control over the legislative body. 

But this observation, when examined, will appear rather specious 
than solid. The propriety of .the thing does not turn upon the 
supposition of superior wisdom or virtue in the executive; but up- 
on the supposition, that the legislative will not be infallible; that 
the love of power may sometimes betray it into a disposition to 
43 



338 THE FEDERALIST. 

encroach upon the rights of the other members of the govern" 
ment ; that a spirit of faction may sometimes pervert its dehbera- 
tions ; that impressions of the moment may sometimes hnrry it 
into measures which itself, on mature reflection, would condemn. 
The primary inducement to conferring the power in question up- 
on the executive is, to enable him to defend himself : the secon- 
dary is to increase the chances in favor of the community against 
the passing of bad laws, through haste, inadvertence or design. 
The oftener a measure is brought under examination, the greater 
the diversity in the situations of those who are to examine it, the 
less must be the danger of those errors which flow from want of 
due deliberation, or of those missteps which proceed from the con- 
tagion of some common passion or interest. It is far less proba- 
ble, that culpable views of any kind should infect all the parts of 
the government at the same moment and in relation to the same 
object, than that they should by turns govern and mislead every 
one of them. 

It may perhaps be said that the power of preventing bad laws 
includes that of preventing good ones; and may be used to the 
one purpose as well as to the other. But this objection will have 
little weight with those who can properly estimate the mischiefs 
of that inconstancy and mutability in the laws, which form the 
greatest blemish in the character and genius of our governments. 
They will consider every institution calculated to restrain the ex- 
cess of law-making, and to keep things in the same state in which 
they may happen to be at any given period, as much more likely 
to do good than harm ; because it is favorable to greater stability 
in the system of legislation. The injury which may possibly be 
done by defeating a few good laws, will be amply compensated 
by the advantage of preventing a number of bad ones. 

Nor is thi^ all. The superior weight and influence of the. legis- 
lative body in a free government, and the hazard to the executive 
in a trial of strength wit!rtl;at body, aftbrd a satisfactory security 
that the negative would generally be employed with great caution ,' 
and that in its exercise, there would oftener be room for a charge 
of timidity than of rashness, i A king of Great Britain, with all 
his train of sovereign attributes, and with all the influence he draws 
from a thousand sources, v/ould at this day, hesitate to put a 
negative upon the joint resolutions of the two bouses of parlia- 
ment. He would not fail to exert the utmost re&f)urces of that 
influence to strangle a measure disagreeable to him, in its progress 
to the throne, to avoid being reduced to the dilemma of permit- 
ting it to take effect, or of risking the displeasure of the natior>, by 
an opposition to the sense of the legislativ^e body. Nor is it prob- 
able, that he would ultimately venture to exert his prerogafive^ 
but in a case of manifest propriety, or extreme necessity. All well- 
informed men in that kingdom will accede to the justness of this 



THE FEDERALIST. 339 

remark. A very considerable period has elapsed since the nega- 
tive of the crown has been exercised. — -^ 

If a magistrate, so powerful, and so well fortified, as a Britislv 
monarch, would have scruples about the exercise of the power 
under consideration, how much greater caution may be reasona- 
bly expected in a president of the United States, clothed for the 
short period of four years, with the executive authority of a gov- 
ernment "wholly and purely republican ! -^ 

It is evident, that there would be greater danger of his not 
using his power when necessary, than of his using it too often, or 
too much. An argument, indeed, against its expediency, has 
been drawn from this very source. / It has been represented, on , /' 
this account, as a power odious in appearance, nseless in practice. ^ 
But it will not follow, that because it might rarely, it would never 
be exercised. / In the case for which it is chiefly designed, that of \ 
an immediate attack npon the constitutional rights of the execu- \ 
live, or in a case in which the public good was evidently and pal- I 
pably sacrificed, a man of tolerable firmness would avail himself I 
of his constitutional means of defence, and would listen to the | 
admonitions of duty and responsibility. In the former supposition, f 
his fortitude would be stimulated by his immediate interest in the 
power of his office ; in the latter, by the probability of the sanc- 
tion of his constituents ; v/ho, though they would naturally in- 
cline to the legislative body in a doubtful case, would hardly suf- 
fer their partiality to delude them in a very plain one. I speak 
now with an eye to a magistrate possessing only a common share 
of firmness. There are meti who. under any circumstances, will 
have the courage to do their duty at every hazard. 

But the convention have pursued a mean in this business, which 
will both ficilitate the exercise of the power vested in this respect 
in the executive magistrate, and make its efficacy to depend on the 
sense of a considerable part of the legislative body. Instead of 
an absolute, it is proposed to give the executive the qualified nega- 
tive, already described. This is a power which would be much 
more readily exercised than the other. A man who might be 
afraid to defeat a law by his single veto, might not scruple to re- 
turn it for reconsideration ; subject to being finally rejected, only 
in the event of more than one third of each house concurring in 
the sufficiency of his objections. He would be encouraged by the 
reflection, that if his opposition should prevail, it would embark in 
it a very respectable portion of the legislative body, whose influ- 
ence would be united with his in supporting the propriety of his 
conduct in the public opinion. A direct and catagorical negative 
has something in the appearance of it more harsh, and more apt 
to irritate, than the mere suggestion of argumentative objections to 
be approved or disapproved, h^ those to whom they are addressed. 
In proportion as it would be less apt to otfend, it would be more 



340 THE FEDERALIST. 

apt to be exercised ; and for this very reason, it may in practice 
be found more effectual. It is to be hoped that it will not often 
happen, that improper views will govern so large a proportion as 
two thirds of both branches of the legislature at the same time ; 
and this too in defiance of the counterpoising weight of the ex- 
ecutive. It is at any rate far less probable, that this should be 
the case, than that such views should taint the resolutioijs and 
conduct of a bare majority. A power of this nature in the ex- 
ecutive, will often have a silent and unperceived, though forcible 
operation. When men, engaged in unjustifiable pursuits, are 
aware that obstructions may come from a quarter which they can- 
not control, they will often be restrained, by the bare apprehension 
of opposition, from doing what they would with eagerness rush 
into, if no such external impediments were to be feared. 

This qualified negative, as has been elsewhere remarked, is in 
this state vested in a council, consisting of the governor, with the 
chancellor and judges of the supreme court, or any two of them. 
It has been freely employed upon a variety of occasions, and fre- 
quently with success. And its utility has become so apparent, 
the persons who, in compiling the constitution, were its violent 
opposers, have from experience become its declared admirers.* 

I have in another place remarked, that the convention in the 
formation of this part of their plan, had departed from the model 
of the constitution of this state, in favor of that of Massachu- 
setts. Two strong reasons may be imagined for this preference ; 
one, that the judges, who are to be the interpreters of the law, 
might receive an improper bias, from having given a previous 
opinion in their revisionary capacity ; the other, that by being 
often associated with the executive, they might be induced to 
embark too far in the political views of that magistrate, and thus 
a dangerous combination might by degrees be cemented betwesn 
the executive and judiciary departments. It is impossible to 
keep the judges too distinct from every other avocation than that 
of expounding the laws. It is peculiarly dangerous to place 
them in a situation to be either corrupted or influenced by the 
executive. , PUBLIUS. 

* Mr. Abram Yates, a warm opponent of the plan of the convention, ia of this 
number. 



THE FEDERALIST. 341 

BY ALEXANDER HAMILTON. 

THE SAME VIEW CONTINUED, IN RELATION TO THE COMMAND OF THE 
NATIONAL FORCES, AND THE POWER OP PARDONING. 

The president of the United States is to be commander " in 
"chief of the army and navy of the United States, and of the 
" miUtia of the several states when called into the actual service 
'• of the United States." The propriety of this provision is so ev- 
ident, and it is, at the same time, so consonant to the precedents 
of the state constitutions in general, that little need be said to ex- 
plain or enforce it. Even those of them which have, in oilier re- 
spects, coupled the chief magistrate with a council, have for the 
most part concentrated the military authority in him alone. Of 
all the cares or concerns of government, the direction of war most 
peculiarly demands those qualities which distinguish the exercise of 
power by a single hand. The direction of war, implies the direc- 
tion of the common strength ; and the power of directing and em- 
ploying the common strength, forms an usual and essential part in 
the definition of the executive authority. 

" The president may require the opinion, in writing, of the 
" principal officer in each of the executive departments, upon any 
" subject relating to the duties of their respective offices." This 
I consider as a mere redundancy in the plan ; as the right for which 
it provides would result of itself from tlie office. 

He is also authorized " to grant reprieves and pardons for of- 
" fences against the United States, except in cases of impeach- 
" ment." Humanity and good policy conspire to dictate, that the 
benign prerogative of pardoning should be as little as possible fet- 
tered or embarrassed. The criminal code of every country par- 
takes so much of necessary severity, that without an easy ac- 
cess to exceptions in favor of unfortunate guilt, justice would 
wear a countenance too sanguinary and cruel. As the sense of 
responsibility is always strongest, in proportion as it is undivided, it# 
may be inferred, that a single man would be most ready to attend 
to the force of those motives which might plead for a mitigation 
of the rigor of the law, and least apt to yield to considerations, 
which were calculated to shelter a fit object of its vengeance. 
The reflection that the fate of a fellow-creature depended on his 
so!!e fiat, would naturally inspire scrupulousness and caution ; the 
dread of being accused of weakness or connivance would beget 
equal circumspection, though of a different kind. / On the other 
hand, as men generally derive confidence from their number, they 
might often encourage each other, in an act of obduracy, and 
might be less sensible to the apprehension of censure for an injudi- 



V 



342 THE FEDERALIST. 

cions or affected clemency. On these accounts, one man appears 
to be a more eligible dispenser of the mercy of government, than 
a body of men.^. 

The expediency of vesting the power of pardoning in the pres- 
ident has, if I mistake not, been only contested in relation to the 
crime of treason. This it has been urged, ought to have depend- 
ed upon the assent of one, or both of the branches of the legisla- 
tive body. I shall not deny that there are strong reasons to be as- 
signed for requiring in this particular the concurrence of that body, 
or of a part of it. As treason is a crime leveled at the immediate 
being of the society, when the laws have once ascertained the guilt 
of the offender, there seems a fitness in referring the expediency 
of an act of mercy towards him to the judgment of the legislature. 
And this ought the rather to be the case, as the supposition of the 
connivance of the chief magistrate ought not to be entirely excluded.^ 
But there are also strong objections to such a plan. It is not to be 
doubted, that a single man of prudence and good sense is better 
fitted, in dehcate conjunctures, to balance the motives'which may 
plead for and against the remission of the punishment, than any 
numerous body whatever. It- deserves particular attention, that 
treason will often be connected with seditions which embrace a 
large proportion of the community ; as lately happened in Massa- 
chusetts. In every such case, we might expect to see the repre- 
sentation of the people tainted with the same spirit which had 
given birth to the offence. And when parties were preity equally 
poised, the secret sympathy of the friends and favorers of the con- 
demned, availing itself of the good nature and weakness of others, 
might frequently bestow impunity where the terror of an example 
' was necessary. ^ On the other hand, when the sedition had pro- 
ceeded from causes which had inflamed the resentments of the 
major party, they might often be found obstinate and inexorable, 
when policy demanded a conduct of forbearance and clemency. 
But the principal argument for reposing the power of pardoning in 
this case in the chief magistrate, is this: in seasons of insurrec- 
tion or rebellion, there are often critical moments, when a well- 
-timed offer of pardon to the insurgents or rebels may restore the 
tranquillity of the commonwealth^ and which, if suffered to pass 
unimproved, it may never be possible afterwards to recall. The 
dilatory process of convening the legislature, or one of its branch- 
es, for the purpose of obtaining its sanction, would frequently be 
the occasion of letting slip the golden opportunity. The loss of a 
week, a day, an hour, may sometimes be fatal. If it should be 
observed, that a discretionary power, with a view to such contin- 
gencies, might be occasionally conferred upon the president ; it may 
be answered in the first place, that it is questionable, whether, in a 
limited constitution, that power could be delegated by law ; and in 
the second place, that it would generally be impolitic beforehand 



THE FEDERALIST. 343 

to take any step which might hold out the prospect of impunity. 
A proceeding of this kind, out of the usual course, would be likely 
to be construed into an argument of timidity or of w.^akness, and 
would have a tendency to embolden guilt, PUBLIUS. 



BY ALEXANDER HAMILTON. 

THE SAME VIEW CONTINUED, IN RELATION TO THE POWER OF MAK- 
ING TREATIES. 

The president is to have power, "by and with the advice and 
*' consent of the senate, to make treaties, provided two thirds of 
" the senators present concur." 

Though this provision has been assailed on different grounds, 
with no small degree of vehemence, I scruple not to declare my 
firm persuasion, that it is one of the best digested and most unex- 
ceptionable parts of the plan. One ground of objection is the trite 
topic of the intermixture of powers; some contending that the 
president ought alone to possess the prerogative of making trea- 
ties ; others, that it ought to have been exclusively deposited in 
the senate. Anotlier source of objection, is derived from the 
small number of persons by whom a treaty may be made. Of 
those who espouse this objection, a part are of opinion, that the 
house of representatives ought to have been associated in the 
business, while another part seem to think that nothing more was 
necessary than to have substituted two thirds of all the members 
of the senate, to two thirds of the members present. As I flat- 
ter myself the observations made in a preceding number upon this 
part of the plan, must have sufficed to place it, to a discerning 
eye, in a very favorable light, I shall here content myself with 
oflering only some supplementary nimarks, principally with a 
view to the objections v/hich have been just stated. 

With regard to the intermixture of powers, I shall rely upon the 
explanations heretofore given, of the true sense of the rule upon 
which that objection is founded ; and shall rake it for granted, as 
an inference from them, that the union of the executive with the 
senate, in the article of treaties, is no infringement of that rule. I 
venture to add, that the particular nature of the power of making 
treaties, indicates a peculiar propriety in that union, 'i'hough sev- 
eral writers on the subject of government place that power in the 
class of executive authorities, yet this is evidently an arbitrary dis- 
position : for if we attend carefully to its operation, it will be found 
to partake more of the legislative than of the executive character; 



344 THE FEDERALIST. 

though it does not seem strictly to fall within the definition of 
either. The essence of the legislative authority is to enact laws, 
or, in other words, to prescribe rules for the regulation of the so- 
ciety ; while the execution of the laws, and the employment of 
the common strength, either for this purpose, or for the common 
defence, seem to comprise all the functions of the executive mag- 
istrate. The power of making treaties is, plainly, neither the one 
nor the other. It relates neither to the execution of the subsist- 
ing laws, nor to the enaction of new ones ; and still less to an ex- 
ertion of the common strength. Its objects are contracts with 
foreign nations, which have the force of law, but derive it from 
the obligations of good faith. They are not rules prescribed by 
the sovereign to the subject, but agreements between sovereign 
and sovereign. The power in question seems therefore to form a 
distinct department, and to belong, properly, neither to the legisla- 
tive nor to the executive. The qualities elsewhere detailed, as 
indispensable in the management of foreign negotiations, point out 
the executive as the most fit agent in those transactions ; while 
the vast importance of the trust, and the operation of treaties as 
laws, plead strongly for the participation of the whole or a portion 
of the legislative body in the office of making them. - 

However proper or safe it may be in governments, where the ex- 
ecutive magistrate is an hereditary monarch, to commit to him the 
entire pov/er of making treaties, it would be utterly unsafe and im- 
proper to entrust that power to an elective magistrate of four years 
duration. It has been remarked, upon another occasion, and the 
remark is unquestionably jiist, that an hereditary monarch, though 
often the oppressor of his people, has personally too much at stake 
in the government, to be in any material danger of being cor- 
rupted by foreign powers ; but that a man raised from the station 
of a private citizen to the ratik of chief magistrate, possessed of 
but a moderate or slender fortune, and looking forward to a period 
not very remote, when he may probably be obliged to return to the 
station from which he was taken, might sometimes be under tempt- 
ations to sacrifice duty to interest, which it would require superla- 
tive virtue to withstand. An avaricious man might be tempted to 
betray the interests of the state for the acquisition of wealth. An 
ambitious man might make his own aggrandisement, by the aid 
of a foreign power, the price of his treachery to his constituents. 
The history of human conduct does not warrant that exalted 
opinion of human virtue, which would make it wise in a nation 
to commit interests of so delicate and momentous a kind, as those 
which coiicern its intercourse with the rest of the world, to the 
sole disposal of a magistrate created and circumstanced as would 
be a president of the United States. 

To have entrusted the power of making treaties to the senate 
alone, would have been to relinquish the benefits jof the constitu- 



THE FEDERALIST. 345 

tiona! agency of the president in the conduct of foreign negotia- 
tions. It is true, that the senate would, in that case, have the op- 
tion of employing him in this capacity ; but they would also have 
the option of letting it alone ; and pique or cabal might induce 
the latter rather thtm the former. Besides this, the ministerial ser- 
vant of the senate could not be expected to enjoy the confidence 
and respect of foreign powers in the same extent with the consti- 
tutional representatives of the nation ; and of course, would not be 
able to act with an equal degree of weight or efficacy. While 
the union would, from this cause, lose a considerable advantage in 
the management of its external concerns, the people would lose 
the additional security which would result from the cooperation of 
the executive. Though it would be imprudent to confide in him 
solely so important a trust ; yet it cannot be doubted, that his par- 
ticipation would materially add to the safety of the society. It must 
indeed be clear, to a demonstration, that the joint possession of 
the power in question, by the president and senate, would afford 
a greater prospect of security, than the separate possession of it 
by either of them. And whoever has maturely weighed the cir- 
cumstances which must concur in the appointment of a president, 
will be satisfied that the office will always bid fair to be filled by 
men of such characters, as to render their concurrence in the for- 
mation of treaties, peculiarly desirable, as well on the score of 
wisdom, as on that of integrity. 

The remarks made in a former number, will apply with con- 
clusive force against the admission of the house of representatives 
-to a share in the formation of treaties. The fluctuating, and, tak- 
ing its future increase into the account, the multitudinous compo- 
sition of that body, forbid us to expect in it those qualities which 
are essential to the proper execution of such a trust. Accurate 
•and comprehensive knowledge of foreigii politics; a steady and 
systematic adherence to the same views; a nice and uniform sen- 
sibility to national character ; decision, secrecy, and dispatch are 
incompatible with the genius of a body so variable and so numer- 
ous. The very complication of the business, by introducing a 
necessity of the concurrence of so many different bodies, would 
of itself. afford a solid objection. The greater frequency of the 
calls upon the house of representatives, and the greater length of 
time which it would often be necessary to keep them together 
Avhen convened, to obtain their sanction in the progressive stages 
of a treaty, would be a source of so great inconvenience and ex- 
pense, as alone ought to condemn the project. 

The only objection that remains to be canvassed, is that which 
would substitute the proportion of two thirds of all the members 
composing the senatorial body, to that of two thirds of the mem- 
bers joresew/. It has been shown, under the second head of our 
inquiries, that all provisions which require more than the majority 
44 



346 THE FEDERALIST. 

of any body to its resolutions, have a direct tendency to embar- 
rass the operations of the government, and an indirect one to sub- 
ject the sense of the majority to that of the minority. This con- 
sideration seems sufficient to determine our opinion, that the con- 
vention have gone as far in the endeavor to secure the advantage 
of numbers in the formation of treaties, as could have been recon- 
ciled either v/ith the activity of the public councils or with a reason- 
able regard to the major sense of the community. If two thirds 
of the whole number of members had been required, it would^ in 
many cases, from the non-attendance of a part, amount in prac- 
tice to a necessity of unanimity. And the history of every political 
establishment in which this principle has prevailed, is a history of 
impotence, perplexity and disorder. Proofs- of this position might 
be adduced from the examples of the Roman tribuneship, the 
PoHsh diet, and the states general of the Netherlands ; did not 
an example at home render foreign precedents unnecessary. 

To require a fixed proportion of the whole body, would not in 
all probability, contribute to the advantages of a numerous agency, 
better than merely to require a proportion of the attending mem- 
bers. The former, by increasing the difficulty of resolutions dis- 
agreeable to the minority, diminishes the motives to punctual at- 
tendance. The latter, by making the capacity of the body to de- 
pend on a proportion which may be varied by the absence or 
presence of a single member, has the contrary effect. And as by 
promoting punctuality, it tends to keep the body complete, there is 
great likeUhood, that its resolutions would generally be dictated by 
as great a number in this case, as in the other ; while there would be 
much fewer occasions of delay. It ought not to be forgotten that 
under the existing confederation, two members may, and usually 
do repi'esent the state ; whence it happens that congress, who now 
are solely invested with all the powers of the union, rarely con- 
sists of a greater number of persons than would compose the in- 
tended senate. If we add to this, that as'lhe members vote by 
states, and that where there is only a single member present from 
a state, his vote is lost ; it will justify a supposition that the active 
voices in the senate, where the members are to vote individually, 
would rarely fall short in number of the actual voices in the exist- 
ing congress. When, in addition to these considerations, we take 
into view the cooperation of the president, we shall not hesitate to 
infer that the people of America would have greater security 
against an improper use of the power of making treaties, under 
the new constitution, than they now eiijoy under the confederation. 
And when we proceed still one step further, and look forward to 
the probable augmentation of the senate, by the erection of new 
states, we shall not only perceive ample ground for confidence in 
the sufficiency of the numbers, to whose agency that power will 
be entrusted ; but we shall probably be led to conclude, that a 



THE FEDERALIST. 347 

body more numerous than the senate is likely to become, would 
be very little fit for the proper discharge of the trust. 

PUBLICS. 



BY ALEXANDER HAMILTON. 

THE SAME VIEW CONTINUED, IN EELATION TO THE APPOINTMENT OF 
THE OFFICERS OF THE GOVERNMENT. 

The president is '"to nominate^ and, by and with the advice 
" and consent of the senate, to appoint ambassadors, other public 
'■'■ ministers and consuls, judges of the supreme court, and all other 
'' officers of the United States, whose appointments are not other- 
" wise provided for in the constitution. But the congress may by 
" law vest the appointment of such inferior officers as they think 
'' proper, in the president alone, or in the courts of law, or in the 
*' heads of departments. The president shall have power to fill 
" up all vacancies which may happen during the recess of the 
*' senate, by granting commissions which shall expire at the end 
^' of their next session." 

It has been observed in a former paper, that "the true test of a 
" good government, is its aptitude and tendency to produce a good 
" administration." If the justness of this observation be admitted, 
the mode of appointing the officers of the United States contained 
in the foregoing clauses, must, when examined, be allowed to be 
entitled to particular commendation. It is not easy to conceive a 
plan better calculated to promote a judicious choice of men for 
filling the offices of the union ; and it will not need proof, that 
on this point must essentially depend the character of its admin- 
istration. 

It will be agreed on all hands, that the power of appointment, 
in ordinary cases, can be properly modified only in one of three 
ways. It ought either to be vested in a single man ; or in a select 
assembly of a moderate number ; or in a single man, with the con- 
currence of such an assembly. The exercise of it by the people 
at large, w^ill be readily admitted to be impracticable ; since, wav- 
ing every other consideration, it would leave them little time to do 
any thing else. When, therefore, mention is made in the subse- 
quent reasonings, of an assembly or body of men, what is said 
must be understood to relate to a select body or assembly, of the 
description already given. The people collectively, from their 
number and from their dispersed situation, cannot be regulated in 
their movements by that systematic spirit of cabal and intrigue, 



348 THE FEDERALIST. 

which will be urged as the chief objections to reposing the power 
in question in a body of men. 

Those who have themselves reflected upon the subject, or who 
have attended to the observations made in other parts of these 
papers, in relation to the appointment of the president, will, I pre- 
sume, agree to,,the position, that there would always be great prob- 
ability of having the place supplied by a man of abilities, at least 
respectable. Premising this, 1 proceed to lay it down as a rule, 
that one man of discernment is better fitted to analyze and esti- 
mate the peculiar qualities adapted to particular offices, than a 
body of men of equal, or perhaps even of superior discernment. 

The sole and undivided responsibility of one man, will naturally 
beget a livelier sense of duty, and a more exact regard to reputa- 
tion. He will, on this account, feel himself under stronger obliga- 
tions, and more interested to investigate with care the qualities re- 
quisite to the stations to be filled, and to prefer with impartiality 
the person who may have the fairest pretensions to them. He will 
have fewer personal attachments to gratify, than a body of men 
who may each be supposed to have an equal number; and will be 
so much the less liable to be misled by the sentiments of fri(?ndship 
and of affection. There is nothing so apt to agitate the passions 
of mankind as personal considerations, whether they relate to our- 
selves or to others, who are to be the objects of our choice or pre- 
ference. Hence, in every exercise of*the power of appointing to 
offices by an assembly of men, we must expect to see- a full dis- 
play of all the private and party likings and dislikes, partialities 
and antipathies, attachments and animosities, which are felt by 
those who compose the assembly. The choice which may at any 
time happen to be made under such circumstances, will of course 
be the result either of a victory gained by one party over the other, 
or of a compromise between the parties. In either case, the in- 
trinsic merit of the candidate will be too often out of sight. In 
the first, the qualifications best adapted to uniting the suffrages of 
the party, will be more considered than those which fit the person 
for the station. In the last, the coalition will commonly turn upon 
some interested equivalent: "Give us the man we wish for this 
" office, and you shall have the one you wish for that." This will 
be the usual condition of the bargain. And it will rarely happen 
that the advancement of the public service will be the primary 
object either of party victories, or of party negotiations. 

The truth of the principles here advanced, seems to have been 
felt by the most intelligent of those who have found fault with the 
provision made, in this respect, by the convention. They contend 
that the president ought solely to have been authorized to make 
the appointments under the federal government. But it is easy to 
show, that every advantage to be expected from such an arrange- 
ment would, in substance, be derived from the power of nomina- 



THE FEDERALIST. 349 

tio?i, which is proposed to be conferred upon him ; while several 
disadvantages which might attend the absokue power of appoint- 
ment in the hands of that officer would be avoided. In the act of' 
nomination, his judgment alone would be exercised ; and as it 
would be his sole duty to point out the man, who with tfie appro- 
bation of the senate should fill an office, his responsibility would 
be as complete as if he were to make the final aj)pointment. 
There can, in this view, be no difference between nominating and 
appointing. The same motives which would influence a proper 
discharge of his duty in oi]e case, would exist in the other. And 
as no man could be appointed but on his previous nomination, ev- 
ery man who might be appointed would be, in fact, his choice. 

But his nomination may be overruled : this it certainly may ; 
yet it can only be to make place for another nomination by him- 
self. The person ultimately appointed must be the object of his 
preference, though perhaps not in the first degree, [t is also not 
probable, that his nomination would often be overruled. The 
senate could not be tempted, by the preference theyjnight feel to 
another, to reject the one proposed ; because they could not assure 
themselves, that the person they might wish would be brought for- 
ward by a second or by any subsequent nomination. They could 
not even be certain, that a future nomination would present a can- 
didate in any degree more acceptable to them : and as their dissent 
might cast a kind of stigma upon the individual rejected, and might 
have the appearance of a reflection upon the judgment of the chief 
magistrate ; it is not likely that their sanction would often be refus- 
ed, where there were not special and strong reasons for the refusal. 

To what purpose then require the cooperation of the senate ? I 
answer, that the necessity of their concurrence would have a pow- 
erful, though, in general, a silent operation. It would be an ex- 
cellent check upon a spirit of favoritism in the president, and 
would tend greatly to prevent the appointment of unfit characters 
from state prejudice, from family connexion, from personal attach- 
ment, or from a view to popularity. In addition to this, it would 
be an efficacious source of stability in the administration. 

It will readily be comprehended, that a man who had himself 
the sole disposition of offices, would bq governed inuch more by 
his private inclinations and interests, than when he was bound to 
submit the propriety of his choice to the discussion and determina- 
tion of a different and independent body; and that body an en- 
tire branch of the legislature. The possibility of rejection would 
be a strong motive to care in proposing. The danger to his own 
reputation, and, in the case of an elective magistrate, to his politi- 
cal existence, from betraying a spirit of favoritism, or an unbe- 
coming pursuit of popularity, to the observation of a body whose 
opinion would have great weight in forming that of the public, 
could not fail to operate as a barrier to the one and to the other. 



350 THE FEDERALIST. 

He woultJ be both ashamed and afraid to bring forward, for the 
most distinguished or hicrative stations, candidates who had no 
other merit than that of coming from the same state to which he 
particularly belonged, or of being in some way or other personally 
allied to him, or of possessing the necessary insignificance and 
pliancy to render them the obsequious instruments of his pleasure. 
To this reasoning it has been objected, that the president, by 
the influence of the power of nomination, may secure the com- 
plaisance of the senate to his views. The supposition of univer- 
sal venality in human nature, is little less an error in political reas- 
oning, than that of universal rectitude. The institution of dele- 
gated power implies, that there is a portion of virtue and honor 
among mankind, which may be a reasonable foundation of confi- 
dence : and experience justifies the theory. It has been found to 
exist in the most corrupt periods of the most corrupt governments. 
The venality of the British house of commons has been long a 
topic of accusation against that body, in the country to which 
they belong, as well as in this ; and it cannot be doubted that the 
charge is, to a considerable extent, well founded. But it is as lit- 
tle to be doubted, that there is always a large proportion of the 
body, which consists of independent and public spirited men, who 
have an influential weight in the councils of the nation. Hence 
it is, (the present reign not excepted.) that the sense of that body is 
often seen to control the inclinations of the monarch, both with re- 
gard to men and to measures. Though it might therefore be allowa- 
ble to suppose, that the executive might occasionally influence some 
individuals in the senate, yet the supposition, that he could in gene- 
ral purchase the integrity of the whole body, would be forced and 
improbable. A man disposed to view human nature as it is, with- 
out either flattering its virtues, or exaggerating its vices, will see 
sufficient ground of confidence in the probity of the senate, to rest 
satisfied, not only that it will be impracticable to the executive to 
corrupt or seduce a majority of its members, but that the necessity 
of its cooperation, in the business of appointments, will be a con- 
siderable and salutary restraint upon the conduct of that magistrate. 
Nor is the integrity of the senate the only reliance. The consti- 
tution has provided some important guards against the danger of 
executive influence upon the legislative body : it declares, " that 
" no senator or representative shall, during the time for which he 
'■'■was elected^ be appointed to any civil office under the United 
" States, which shall have been created, or the emoluments where- 
" of shall have been increased during such time ; and no person, 
"holding any office under the United States, shall be a member 
"of either house during his continuance in office." 

PUBLIUS. 



^ THE FEDERALIST. 351 

BY ALEXANDER HAMILTON. 

THE VIEW OF THE CONSTITUTION OP THE PRESIDENT CONCLUDED, 
WITH A FURTHER CONSIDERATION OP THE POWER OP APPOINTMENT, 
AND A CONCISE EXAMINATION OP HIS REMAINING POWERS. 

It has been mentioned as one of the advantages to be expected 
from the cooperation of the senate, in the bnsiness of appoint- 
ments, that it wonld contribute to the stabiHty of the administra- 
tion. The consent of that body would be necessary to displace as 
well as to appoint.* A change of the chief magistrate, therefore, 
wonld not occasion so violent or so general a revolution in the offi- 
cers of the government as might be expected, if he were the sole, 
disposer of offices. Where a man in any station had given satis- 
factory evidence of his fitness for it, a new president would be re- 
strained from attempting a change in favor of a person more agree- 
able to him, by the apprehension that a discountenance of the sen- 
ate might frustrate the attempt, and bring some degree of discredit 
upon himself. Those who can best estimate the value of a steady 
administration will be most disposed to prize a provision, which 
connects the official existence of public men with the approbation 
or disapprobation of that body, which, from the greater permanen- 
cy of its own composition, will in all probability be less subject 
to inconstaticy than any other member of the goverrjment. 

To this union of the senate with the president, in the article of 
appointments, it has in ^ome cases been objected, that it would 
serve to give the president an undue influence over the senate ; 
and in others that it would have an opposite tendency ; a strong 
proof that neither suggestion is true. 

To state the first in its proper form, is to ref^ute it. It amounts 
to this — the president would have an improper influence over the 
senate; because the senate would have the power of restraining 
him. This is an absurdity in terms. It cannot admit of a doubt 
that the entire power of appointment would enable him much 
more effectually to establish a dangerous empire over that body, 
than a mere power of nomination subject to their control. 

Let us take a view of the converse of the proposition: •' the 
"senate would influence the executive." As I have had occasion 
to remark in several other instances, the indistinctness of the ob- 
jection forbids a precise answer, hi what manner is this influence 
to be exerted ? in relation to what objects? The power of influ- 
encing a person, in the sense in which it is here used must imply 

* This construction has since been rejected by the legislatm-e ; and it is now set- 
tled in practice, that the power of displacing belongs exclusively to the president. 



352 THE FEDERALIST. 

a power of conferring a benefit upon him. How could the senate 
confer a benefit upon the president by the manner of employing 
their right of negative upon his nominations? If it be said they 
might sometimes gratify him by an acquiescence in a favorite 
choice, when public motives might dictate a different conduct : I 
answer, that the instances in which the president would be per- 
sonally interested in the result, would be too few to admit of fiis 
being materially affected by the compliances of the senate. Be- 
sides this, it is evident, that the power which can originate the 
disposition of honors and emoluments, is more likely to attract 
than to be attracted by the power which can merely obstruct their 
course. If by influencing the piesident be vaedini restraining him, 
this is precisely \yhat must have been intended. And it has been 
shown that the restraint would be salutary, at the same time that 
it would not be such as to destroy a single advantage to be looked 
for from the uncontrolled agency of that magistrate. The right 
of nomination would produce all the good, without the ill. 

Upon a comparison) of the plan for the appointment of the offi- 
cers of the proposed government, with that which is established 
by the constitution of this state, a decided preference must be 
given to the former. In that plan, the power of nomination js 
unequivocally vested in the executive. And as there would be a 
necessity for submitting each nomination to the judgment of an 
entire branch of the legislature, the circumstances attending an 
appointment, from the mode of conducting it, would naturally be- 
come matters of notoriety ; and the public could be at no loss to 
determine, what part had been performed by the different actors. 
The blame of a bad nomination would fall upon the president 
singly and absolutely. The censure of rejecting a good one would 
lie entirely at the door v>^ the senate ; aggravated by the consider- 
ation of their having counteracted the good intentions of the ex- 
ecutive. If an ill appointment should be made the executive for 
nominating, and the senate for approving, would participate, 
though in different degrees, in the opprobrium and disgrace. 

The reverse of all this characterizes the manner of appointment 
in this state. The council of appointment consists of from three 
to five persons, of whom the governor is always one. This small 
body , shut up in a private apartment, impenetrable to the public 
eye, proceed to the execution of the trust committed to them. It 
is known that the governor claims the right of nomination, upon 
the strength of some ambiguous expressions in the constitution 
but it is not known to what extent, or in what marnier he exercis- 
es it ; nor upon what occasions he is contradicted or opposed. The 
censure of a bad appointment on account of the uncertainty of its 
author, and for want of a determinate object, has neither poignan- 
cy nor duration. And while an unbounded field for cabal and .in- 
trigue .lies open, all idea of responsibility is lost. The most that 



THE FEDERALIST, 353 

^h^ piibPic can know, is that the governor claims the right of nom" 
j'nation ; that tivo out of the considerable number of four men, 
can often be managed withont much difficulty; that if some of 
the meniibers of a particntar cotMicii should happen to be of an 
Hncontplyaig character, it is freqnently not impossible to get rid 
of their opposition, by regulating the times of meeting in snch a. 
Kianne* as to render their attendance inconvenient ; and that from 
whatever canse it may proceed, a great number of very improper 
appointments are fiT)m time to time' made. Whether a governor 
of this state avails himself of the ascendant he must necessarily 
Slave in this delicate and important part of the administration, to 
prefC'T to offices men who -are best quahfied for them ; or whether 
he prostitutes that advantage to the advaiscement of persons whose 
chief i?ierit is their implicit devotion to his will, and t-o the sup- 
port of a despicable and dangerous system of personal influence, 
are qiiestions which, unfortiuiately for the commimity, can oM'ly 
be the subjects of speculation and conjecture. 

Every mere council of appointment, howeve'r constittited, wilt 
be a conclave, in which cabal and intrigue will have their full 
scope. Their number, without an unwarrantable increase of ex- 
pense, cannot be large enougifi to preclude a facility of combina- 
ition. And as each member will havt; his friends and connexions 
to provide fer, the desire of miqtual gradfication will beget a scan- 
dalous bartering of votes and bargaining for places. The private 
attachnjents of one man might easily fee satisfied ; hut to satisfy 
the private attachments of a dosen, or of twenty men, would oc- 
casiotj a monopoly of ail the principal employments of the govern- 
ment, in a few fatnilies, and would lead more directly to an aris- 
tocracy or an ohgarchy, than any measwre that; could be contrived. 
If to avoid an accumulation of offices, there was to be a frequent 
Ghange in the pereons who were to comj)ose the council, this 
would involve tl^e Uiisehiefsof a mutable administration in their 
f-ull extent. -Such a council v/ould also be more liable to execu- 
tive influence than the senate, because they wouM be fewer in 
number, and wouJd act less immediately under the public inspec- 
tion. Such a counciJ^ in fine, as a substitute for the plan of the 
convention, would be [)roducitive of an increase of ex|Tense, a 
s?nulti[)liration of the evils which spring from favoritism and in- 
Crigue in the distribiUion of public honors, a decrease of stability 
in the administration of the government, and a ditaiinntion of the 
security against an undue induence of the executive. And yet 
such a couiicil has been warmly contended for as an essential 
amendment in the proposed constitution. 

I could not with propriety conclude my observations on the sub- 

ject of appointments, without takitjg notice of a scheme, tor which 

there has appeared some, though but few advocates ; J mean that of 

uniting the house of representatives in the power of making them. 

45 



354 THE FEDERALIST. 

1 shall, however, do litlle more tliari mention it, as I cannot imag- 
ine that it is Hkely to gain the countenance of any considerable 
part of the community. A body so fluctuating, and at the same 
time so numerous, can never be deemed proper for the exercise of 
that power. Its unfitness will appear manifest to all, when it is 
recollected that in half a century it may consist of three or four 
hundred persons. All the advantages of the stability, both* of the 
executive and of the senate, would be defeated by this union ; 
and infinite delays and embarrassments would be occasioned. The 
example of most of the states in their local constitutions, encourag- 
es us to reprobate the idea. 

The only remaining powers of the executive, are comprehend- 
ed in giving information to cingress of the state of the union; in 
recommending to their consideration such measures as he shall 
judge expedient; in convening them, or either branch, upon extra- 
ordinary occasions; in adjourning them when they cannot them- 
selves agree upon the time of adjournment ; in receiving ambassa- 
dors and other public ministers ; in faithfully executing the laws; 
and in commissioning all the officers of the United States. 

Except some cavils about the power of convening either house 
of the legislature, and that of receiving ambassadors, no objection 
has been made to this class of authorities ; nor could they possibly 
admit of any. It required indeed, an insatiable avidity for censure, 
to invent exceptions to the parts which have been assailed. In re- 
gard to the power of convening either house of the legislature, I 
shall barely remark, that in respect to the senate at least, ^ we can 
readily discover a goi)d reason for it. As this body has a concur- 
rent power with the executive in the article of treaties, it might 
often be necessary to call it together with a view to this object, 
when it would be unnecessary and improper to convene the house 
of representatives. As to the reception of ambassadors, what I 
have said in a former paper will furnish a sufficient answer. 

We have now completed a survey of the structure and powers 
of the executive department, which, I have endeavored to show^ 
combines, as far as republican principles will admit, all the requi- 
sites to energy. The remaining inquiry is, — Does it also combine 
the requisites to safety in the republican sense, — a due depend- 
ence on the people — a due responsibility? The answer to this 
question has been anticipated in the investigation of its other char- 
acteristics, and is satisfactorily deducible from these circumstances 
— the election of the president once in four years by persons im- 
mediately chosen by the people for that purpose; his liability, at 
all times, to impeachment, trial, dismission from office, incapacity 
to serve in any other, and lo the forfeiture of life and estate by 
subsequent prosecution in the common course of law. But these 
precautions, great as they are, are not the only ones which the 
plan of the convention has provided in favor of the public securi- 



THE FEDERALIST. 355 

ty. In the only instances in which the abuse of the executive au- 
thority was materially to be feared, the chief magistrate of the 
United States would, by that plan^ be subjected to the control of a 
branch of the legislative body. What more can an enlightened 
and reasonable people desire ? PUBLIUS. 



nsrxjiyEBEiR x.:s::x:-viii. 

BY ALEXANDER HAMILTON. 

A VIEW OF THE CONSTITUTION OP THE JUDICIAL DEPAKTMENT, IN RE- 
LATION TO THE TENURE OF GOOD BEHAVIOR. 

We proceed now to an examination of the judiciary department 
of the proposed government. 

Ill unfolding the defects of the existing con federacj''^ the utility 
and necessity of a federal judicature have been clearly pointed out. 
It is the less necessary to recapitulate the considerations there 
urged, as the propriety of the institution in the abstract is not dis- 
puted ; the only questions which have been raised being relative 
to the manner of constituting it, and to its extent. To these 
points therefore, our observations shall be confined. 

The manner of constituting it seems to embrace these several 
objects : — 1st. The mode of appointing the judges : — 2d. The 
tenure by which they are to hold their places : — 3d. The parti- 
tion of the judiciary authority between different courts, and their 
relations to each other. 

First. As to the mode of appointing the judges ; this is the 
same with that of appointing the officers of the union in general. 
and has been so fully discusfsed in the two last numbers, that noth- 
ing can be said here which would not be useless repetition. 

Second. As to the tenure by which the judges are to hold their 
places : this chiefly concerns their dtnation in office ; the provisions 
for their support ; the precaution for their responsibility. ^ 

According to the plan of the convention, all the judges who 
may be appointed by the United States are to hold their offices 
durmg good behavior: which is conformable to the most ap- 
proved of the state constitutions — among the rest, to that of this 
state. Its propriety having been drawn into question by the ad- 
versaries of that plan, is no light symptom of the rage for objection, 
which disorders their imaginations and judgments. The standard 
of good behavior for the continuance in office of the judicial 
magistracy, is certainly one of the most valuable of the modern im- 
provements in the practice of government. In a monarchy, it is an 
excellent barrier to the despotism of the prince : in a republic it is 



356 THE FEDERAUST. 

a no less excellent barrier to the encroacbrrients and oppressions of 
the representative body. And it is the best expedient which cam 
be devised in any government, to secure a steady, npright, and im- 
partial adminislration of the )aws. 

Whoever attentively considers the different departments of pow- 
er ronst perceive, that in a government in which they are separat- 
ed from each other, the judiciary, from the nature of its functions^ 
will always be the least dangerous to the political rights of the 
constitution ; because it will be least in capacity to annoy or in- 
jure them. The executive not only dispenses the honors, but 
holds the sv/ord of the community ; thelegislatuie not only com- 
mands the parse, but prescribes the rules by which the duties and 
rights of every citizen are to be regulated : the judiciary, on the 
contrary, has no influence over either the sword or the purse ; no 
direction either of the strength or of the wealth of the society ; 
and can take no achve resolution whatever. It may truly be said 
to have neither force nor will, but merely judgment : and musl 
ultimately depend upon the aid of the executive arm for the effi- 
cacious exercise even of this faculty. 

This simple view of the matter suggests several important con- 
sequences : it proves incontestably, that the judiciary is beyond 
comparison the weakest of the three departments of power ;* that 
it can never attack with success either of the other two ,' and thai 
all possible care is requisite to enable it to defend itself againsi 
their attacks. It equally proves, that though individual oppression 
may liow and then proceed from the courts of justice, the general 
liberty of the people can never be eiidaugered from that quarter : 
i mean so long as the judiciary remains truly distinct from both the 
legislature and executive. For I agree, that " there is no liberty, 
" if the power of judging be not separated from the legislative 
" and executive powers."f It proves, in the last place, that as lib- 
erty can have nothing to fear from the judiciary alone, but would 
have every thing to fear from its union with either of the other de- 
partm(Hits ; that as all the effects of such an union must ensue 
from a dependence of the former on the latter^ notwithstanding a 
nominal and apparent separation ; that as from the natural feeble- 
ness of the judiciary, it is in continual jeopardy of being over- 
powered, awed or influenced by its coordinate branches ; that as. 
nothing can contribute so much to its firmness and independence as- 
PERMANENCY IN OFFICE, this quality may therefore be justly regard- 
ed as an indispensable ingredient in its constitution j and in a 
great measure, as the citadel, of the public justice and the public 
security. 

The complete independence of the courts of justice is peeuliatly 

* Montesquieu, speaking of them says, " Of the three powers above mentioned^ 
the JUDICIARY is next to nothing." Spirit of Ijaws» ^ml. 1, page- 1S6. 
t Idem» page 181. 



THE FEDERALIST. 357 

essential in a limited constitution. By a limited constitution, I 
understand one which contains certain specified exceptions to the 
legislative authority ; such for instance, as that it shall pass no 
bills of attainder, no ex 'post facto laws, and the like. Limita- 
tions of this kind can be preserved in practice in no other way 
than through the medium of the courts of justice ; whose duty 
it must be to declare all acts contrary to the manifest tenor of the 
constitution void. Without this, all the reservations of particu- 
lar rights or privileges would amount to nothing. 

Some perplexity respecting the rights of the courts to pro- 
nounce legislative acts void, because contrary to the constitution, 
has arisen from an imagination that the doctrine would imply a 
superiority of the judiciary to the legislative power. It is urged 
that the authority which can declare the acts of another void, 
must necessarily be superior to the one whose acts may be declar- 
ed void. As this doctrine is of great importance in all the Amer- 
ican constitutions, a brief discussion of the ground on which it 
rests cannot be unacceptable. 

There is no position which depends on clearer principles, than 
that every act of a delegated authority, contrary to the tenor of 
the commission under which it is exercised, is void. No legisla- 
tive act, therefore, cotUrary to the constitution, can be valid. To 
deny this, would be to affirm, that the deputy is greater than his 
principal; that the servant is above his master ; that the repre- 
sentatives of the people are superior to the people themselves ; 
that men acting by virtue of powers, may do not only what their 
powers do not authorize, but what (hey forbid. 

If it be said that the legislative body are themselves the con- 
stitutional judges of their own powers, and that the construction 
they put upon them is conclusive upon the other departments, it 
may be answered, that this cannot be the natural presunjption, 
where it is not to be collected from any particular provisions in 
the constitution. It is not otherwise to be supposed, that the 
constitution could intend to enable the representatives of the peo- 
y>le to substitute their will to that of their constituents. It is far 
more rational to suppose, that the courts were designed to be an 
intermediate body between the people and the legislature, in or- 
der, among other things, to keep the latter within the limits as- 
signed to their authority. The interpretation of the laws is the 
proper and peculiar province of the courts. A constitution is, in 
fact, and must be regarded by the judges as a fundamental law. 
It must therefore belong to them to ascertain its meaning, as well 
as the meaning of any particular act proceeding from the legisla- 
tive body. If there should happen to be an irreconcilable vari- 
ance between the two, that which has the superior obligation and 
validity ought, of course, to be preferred : in other words, the 



358 THE FEDERALIST. 

constitution ought to be preferred to the statute ; the intention of 
the people to the intention of their agents. 

Nor does the conchision by any means suppose a superiority of 
the judicial to the legislative power. It only supposes that the 
power of the people is superior to both ; and that where the will 
of the legislature, declared in its statutes, stands in opposition to 
that of the people, declared in the constitution, the judges ought 
to be governed by the latter rather than the former. They ought 
to regulate their decisions by the fundamental laws, rather than 
by those which are not fundamental. 

This exercise of judicial discretion, in determining between 
two contradictory laws, is exemplified in a familiar instance. It 
not uncommonly happens, that there are two statutes existing at 
one time* clashing in whole or in part with each other, and neith- 
er of them containing any repealing clause or expression. In such 
a case, it is the province of the courts to liquidate and fix their 
meaning and operation : so far as they can, by any fair construc- 
tion, be reconciled to each other, reason and law conspire to dic- 
tate that this should be done: where this is impracticable, it be- 
comes matter of necessity to give effect to one, in exclusion of 
the other. The rule which has obtained in the courts for deter- 
mining their relative validity is, that the last in order of time shall 
be preferred to the first. But this is a mere rule of construction, 
not derived from any positive law, but from the nature and reason 
of the thing. It is a rule not enjoined upon the courts by legis- 
lative provision, but adopted by themselves, as consonant to truth 
and propriety, for the direction of their conduct as interpreters of 
the law. They thought it reasonable, that between the interfer- 
ing acts of an equal authority, that which was the last indication 
of its will should have the preference. 

But in regard to the interfering acts of a superior and- subordi- 
ijate authority, of an original and derivating power, the nature and 
reason of the thing indicate the converse of that rule as proper 
to be followed. They teach us, that the prior act of a superior 
ought to be preferred to the subsequent act of an inferior ai]d sub- 
ordinate authority ; and that accordingly, whenever a particular 
statute contravenes the constitution, it will be the duty of the ju- 
dicial tribunals to adhere to the latter and disregard the former. 

It can be of no weight to say that the courts, on the pretence of 
a repugnancy, may substitute their own pleasure to the constitu- 
tional intention of the legislature. This might as well happen in 
the case of two contradictory statutes ; or it might as well happen 
in every adjudication upon any single statute. The courts must 
declare the sense of the law ; and if they should be disposed to 
exercise will instead of judgment, the consequence would equally 
be the substitution of their pleasure to that of the legislative body. 



TFIE FEDERALIST. 359 

The observation, if it proved any thing, would prove that there 
ought to be no judges distinct from that body. 

If then the courts of justice are to be considered as the bul- 
warks of a limited constitution, against legislative encroachments, 
this coiisideratjion will afford a strong argument for the permanent 
tenure of judicial offices, since nothing will contribute so much as 
this to that independent spirit in the judges, which must be essen- 
tial to the faithful performance of so arduous a duty. 

This independence of the judges is equally requisite to guard 
the constitution and the rights of individuals, from the effects of 
those ill humors, which the arts of designing men, or the influence 
of particular conjunctures, sometimes disseminate among the peo- 
ple themselves, and which, though they speedily give place to a 
better information, and more deliberate reflection, have a tenden- 
cy, in the mean time, to occasion dangerous innovations in the 
government, and serious oppressions of the minor party in the com- 
munity. Though I trust the friends of the proposed constitution 
will never concur with its enemies,* in questioiiing that fun- 
damental principle of republican government, which admits the 
right of the people to alter or abolish the established constitution. 
whenever they find it inconsistent with their happiness ; yet it is 
not to be inferred from this principle, that the representatives of 
the people, wlienever a momentary inclination happens to lay hold 
of a majority of their constituents, incompatible with the provis- 
ions in the existing constitution, would, on that account, be justi- 
fiable in a violation of those provisions; or that the courts would 
be under a greater obligation to connive at infractions in this shape, 
than when they had proceeded wholly from the cabals of the rep- 
resentative body. Until the people have, by some solemn and au- 
ihoriiafive act annulled or changed the established form, it is bind- 
ing upon themselves collectively, as well as individually ; and no 
])resumption, or even knowledge of their sentiment, can warrant 
their representatives in a departure from it, prior to such an act. 
But it is easy to see, that it would require an uncommon portion 
of fortitude in the judges to do their duty as faithful guardians of 
the constitution, where legislative invasions of it had been insti- 
gated by the major voice of the community. 

But it is not with a view to infractions of the constitution only, 
that the independence of the judges may be an essential safeguard 
against the effects of occasional ill humors in the society. These 
sometimes extend no farther than to the injury of the private rights 
of particular classes of citizens, by unjust and partial laws. Here 
also the firmness of the judicial magistracy is of vast importance 
in mitigating the severity, and confining the operation of such laws. 
It not only serves to moderate the immediate mischiefs of those 

*Vid3 protest of the minority of the convention of Pennsylvania, Martin's 
speech, &c. 



THE FEDERALIST. 

which may have been passed, but it operates as a check upon the 
legislative body in passing them ; who, perceiving that obstacles to 
the success' of iniquitous intention are to be expected from the 
scruples of the courts, are in a manner compelled, by the very 
motives of the injustice they meditate, to qualify their attempts. 
This is a circumstance calculated to have more influence upon the 
character of our governments, than but few may imagine. The 
benefits of the integrity and moderation of the judiciary have al- 
ready been felt in more states than «)ne ; and though they may 
have displeased those v/hose sinister expectations they may have 
disappointed, they must have commanded the esteem atid applause 
of all the virtuous and disinterested. Considerate men, of every 
description, ought to prize whatever will tertd to beget or fortify 
that temper in the courts ; as no man can be sure that he may not 
be to-morrow the victim of a spirit of injustice, by which he may 
be a gainer to-day. And every man must now feel, that the in- 
evitable tendency of such a spirit is to sap the foundations of pub- 
lic and private confidence, and to introduce in its stead universal 
distrust and distress. 

That inflexible and uniform adherence to the rights of the con- 
stitution, and of individuals, which we perceive to be indispensa- 
ble in the courts of justice, can certainly not be expected from 
judges who hold their offices by a temporary commission. 

Periodical appointments, however regulated, or by whomsoever 
made, would, in some way or other, be fatal to their necessary in- 
dependence. If the power of making them was committed either 
to the executive or legislature, there would be danger of an impro- 
per complaisance to the branch which possessed it ; if to both, 
there would bean unwillingness to hazard the displeasure of either; 
j( to the people, or to persons chosen by them for the speciiil pur- 
pose, there would be too great a disposition to consult popularity, 
to justify a reliance that nothing would be consuked but the con- 
stitution and the laws. 

There is yet a further and a v/eighty reason for the permanency 
of judicial offices ; which is deducible from the nature of the qual- 
ifications they require. It has been frequently remarked, with 
great propriety, that a voluminous code of laws is one of the in- 
conveniences necessarily connected with the advantages of a he.e 
govertiment. To avoid an arbitrary discretion in the courts, it is 
indispensable that they should be bound dovi^n by strict rules and 
precedents, which serve to define and point out their duty in every 
particular case that comes i)efore them ; and it will readily be con- 
ceived from the variety of controversies which grow out of the 
folly and wickedness of mankind, that the records of those prece- 
dents must unavoidably swell to a very considerable bulk, and must 
demand long and laborious study to acquire a competent knowledge 
of them. Hence it is, that there can be but few men in the so- 



THE FEDERALIST. 361 

ciety, who will have sufficient skill in the Inws to qualify them 
for the stations of judges. And making the proper deductions for 
the ordinary depravity of human nature, the number must be still 
smaller of those who unite the requisite integrity with the requi- 
site knowledge. These considerations apprize us, that the gov- 
ernment can have no great option betwe.en fit characters ; and that 
a temporary duration in office, which would naturally discourage 
such characters from quitting a lucrative line of practice to accept 
a seat on the bench, would have a tendency to throw the admin- 
istration of justice into hands less able, and less well qualified, to 
conduct it with utility and dignity. In the present circumstan- 
ces of this country, and in those in which it is likely to be for a 
long time to come, the disadvantages on this score would be great- 
er than they may at first sight appear ; but it must be confessed, 
that they are far inferior to those which present themselves under 
the other aspects of the subject. 

Upon the whole, there can be no room to dotftit, that the con- 
vention acted wisely, in copying from the models of those consti- 
tutions which have established good behavior as the tenure of ju- 
dicial offices, in point of duration ; and that so far from being 
blameable on this account, their plan would have been inexcusa- 
bly defective, if it had wanted this important feature of good gov- 
ernment. The experience of Great Britain affords an illustrious 
comment on the excellence of the institution. PUBLIUS. 



BY ALEXANDER HAMILTON. 

A FURTHER VIEW OF THE JUDICIAL DEPARTMENT, IN RELATION TO THE 
PROVISIONS FOR THE SUPPORT AND RESPONSIBILITY -OF THE JUDGES. 

Next to permanency in office, nothing can contribute more to 
the independence of the judges, than a fixed provision for their 
support. The remark made in relation to the president is equally 
applicable here. In the general course of human nature, a power 
over a inaii^s subsistence amounts to a poicer over his will. And 
we can never hope to see realized in practice, the complete sepa- 
ration of the judicial from the legislative power, in any system 
which leaves the former dependent for pecuniary resource on the 
•occasional grants of the latter. The enlightened friends to good 
government in every state, have seen cause to lament the want of 
precise and explicit precautions in the state constitutions on this 
head. Some of these indeed have declared, ih^X permanent* sai- 

* Vide constitution of Massach.usetts, chap. 2, sect. 1, art. 13. 

46 



362 THE FEDERALIST. 

aries should be established for the judges ; but the expenment has 
in some instances shown, that such expressions are not sufficiently 
definite to preclude legislative evasions, Soniething still more 
positive and unequivocal has been evinced to be requisite. The 
plan of the convention accordingly has provided, that the judges 
of the United States "shall at stated times receive for their ser- 
" vices a compensation, which shall not be diminished during 
" their continuance in office." 

This, all circumstances considered, is the most eligible provision 
that could have been devised. It will readily be understood, that 
the fluctuations in the value of money, and in the state of society, 
rendered a fixed rate of compensation in the constitution inadmis- 
sible. What might be extravagant to-day, might in half a century 
become penurious and inadequate. It was therefore necessary to 
leave it to the discretion of the legislature to vary its provisions in 
conformity to the variations in circumstances ; yet under such re- 
strictions as to ph\ it out oi the power of that body to change the 
condition of the individual for the worse. A man iDay then be 
sure of the ground upon which he stands, and can never be de- 
terred from his duty by the apprehension of being placed in a 
less eligible situation. The clause which has been quoted com- 
bines both advantages. The salaries of judicial offices may from 
time to time he altered, as occasion shall require, yet so as never to 
lessen the allowance with which any particular judge comos into 
office, in respect to him. It will be observed, that a difference has 
been made by the convention between the compensation of the 
president and of the judges. That of the former can neither be 
increased nor diminished. That of the latter can only not be di- 
minished, 'I'his probably arose from the difference in the dura- 
tion of the respective offices. As the president is to he elected for 
no more than four years, it can rarely happen that an adequate 
salary, fixed at the commencement of that period, will not continue 
to be such to its end. But with regard to the judges, who, if 
they behave properly, will be secnred in their places for life, it 
may well happen, especially in the early stages of the government, 
that a stipend, which would be very sufficient at their first ap- 
pointment, would become too small in the progress of their service. 
This provision for the support of the judges bears every mark 
of prudence and efficacy ; and it may be safely affirmed, that to- 
gether with the permanent tenure of their offices, it affords a bet- 
ter prospect of their independence than is discoverable in the con- 
stitutions of any of the states, m regard to their own judges. 

The piecautions for their responsibility are comprised in the ar- 
ticle respecting impeachments. They are liable to be impeached 
for malconduct by the house of representatives, and tried by the 
senate ; and, if convicted, may be dismissed from office, and dis- 
qualified for holding any other. This is the only provision on the 



THE FEDERALIST. 363 

point, which is consistent with the necessary independence of the 
judicial character ; and is the only one which we find in our own 
constitution in respect to cur own judges. 

The want of a provision for removing the judges on account 
of inability, has been a subject of complaint. But all considerate 
men will be sensible, that such a provision would either not be 
practiced upon, or would be more liable to abuse, than calcula- 
ted to answer any good purpose. The mensuration of the facul- 
ties of the rnind has, I believe, no place in the catalogue of known 
arts. An attempt to fix the boundary between the regions of 
ability and inability, would much oftener give scope to personal 
and party attachments and enmities, than advance the interests of 
justice, or the public good. The result, except in the case of in- 
sanity, must for the most part be arbitrary ; and insanity, without 
any formal or express provision, may be safely pronounced to be 
a virtual disqualification. 

The constitution of New York, to avoid investigations that must 
forever be vague and dangerous, has taken a particular age as the 
criterion of inability. No man can be a judge beyond sixty. I 
believe there are few at present who do not disapprove of this 
provision. There is no station, in relation to which it is less 
proper, than to that of a judge. The deliberating and comparing 
faculties generally preserve their streiigth much beyond that 
period, in men who survive it ; and wli^n, in addition to this cir- 
cumstance, we consider, how few there are who outlive the season 
of intellectual vigor, and how improbable it is that any consider- 
able proportion of the bench, whether more or less numerous, 
should be in such a situaticm at the same time we shall be ready 
to conclude, that limitations of this sort have little to recommend 
them. In a republic, where fortunes are not affluent, and pen- 
sions not expedient, the dismission of men from stations in which 
they have served their country long and usefully, on which they 
depend for subsistence, and from which it will be too late to resort 
to any other occupation for a livelihood, ought to have some bet- 
ter apology to humanity, than is to be found in the imaginary 
danger of a superatumated bench. PUBLIUS. 



364 THE FEDERALIST. 

BY ALEXANDER HAMILTON. 

A FURTHER VIEW OF THE JUDICIAL DEPARTMENT, IN RELATION TO 
THE EXTENT OF ITS POWERS. 

To judge with accuracy of the due extent of the federal judi- 
cature, it will be necessary to consider, in the first place, what are 
its proper objects. 

It seems scarcely to admit of controversy, that the judiciary au- 
thority of the union ought to extend to these several descriptions 
of cases: 1st. To all those which arise out of the laws of the 
United States, passed in pursuance of their just and constitutional 
powers of legislation : 2d. To all those which concern the execu- 
tion of the provisions expressly contained in the articles of union : 
3d. To all those in which the United States are a party : 4th. 
To all those which involve the peace of the coNFEDERAcr, wheth- 
er they relate to the intercourse between the United States and for- 
eign nations, or to that between the states themselves : 5th. To 
all those which originate on the high seas and are of admiralty or 
maritime jurisdiction : and, lastly, to all those in which the state 
tribunals cannot be supposed to be impartial and unbiased. 

The first, point depends upon this obvious consideration, that 
there ought always to be a constitutional method of giving effica- 
cy to constitutional provisions. What, for instance, would avail 
restrictions on the authority of the state legislatures, without some 
constitutional mode of enforcing the observance of them ? The 
states, by J he plan of the convention, are prohibited from doing 
a variety of things ; some of which are incompatible with the 
interests of the union ; others, with the principles of good gov- 
ernment. The imposition of duties on imported articles, and the 
emission of paper money, are specimens of each kind. No man 
of sense will believe, that such prohibitions would be scrupulously 
regarded, without some effectual power in the government to re- 
strain or correct the infractions of them. This power must either 
be a direct negative on the state laws, or an authority in the fed- 
eral courts to overrule such as might be in manifest contravention 
of the articles of union. There is no third course that I can im- 
agine. The latter appears to have been thought by the conven- 
tion preferable to the former, and I presume, will be most agree- 
able to the states. 

As to the second point, it is imj;ossible, by any argument or 
comment, to make it clearer than it is in itself. If there are such 
things as political axioms, the propriety of the judicial power of a 
government being coextensive with its legislative, may be ranked 
among the number. The mere necessity of uniformity in the in- 



THE FEDERALIST. 365 

terpretation of the national laws, decides the question. Thirteen 
independent courts of final jurisdiction over the same causes, 
arising upon the same laws, is the hydra in government, from 
which nothing but contradiction and confusion can proceed. 

Still less need be said in regard to the third point. Controver- 
sies between the nation and its members, or citizens, can only be 
properly referred to the national tribunals. Any other plan would 
be contrary to reason, to precedent, and to decorum. 

The fourth point rests on this plain proposition, that the peace 
of the WHOLE ought not to be left at the disposal of a part. The 
union will undoubtedly be answerable to foreign powers for the 
conduct of its members. And the responsibility for an injury 
ought ever to be accompanied with the faculty of preventing it. 
As the denial or perversion of justice by the sentences of courts, 
is with reason classed among the just causes of war, it will follow, 
that the federal judiciary ought to have cognizance of all causes 
in which the citizens of other countries are concerned, This is 
not less essential to the preservation of the public faith, than to 
the security of the public tranquillity. A distinction may perhaps 
be imagined, between cases arising upon treaties and the laws of 
nations, and those which may stand merely on the footing of the 
municipal law. Tlie former kind may be supposed proper for the 
federal jurisdiction ; the latter for that of the states. But it is at 
least problematical, whether an unjust sentence against a foreign- 
er, where the subject of controversy was wholly relative to the 
lex loci, would not if unredressed, be an aggression upon his sove- 
reign, as well as one which violated the stipulations of a treaty, or 
the general law of nations. And a still greater objection to the 
distinction would result from the immense difficulty, if not im- 
possibility, of a practical discrimination between the cases of one 
complexion and those of the other. So great a proportion of the 
controversies in which foreigners are parties involve national 
questions, that it is by far most safe and most expedient, to refer 
all those in which they are concerned to the national tribunals. 

The power of determining causes between two states, between 
one state and the citizens of another, and between the citizens of 
different states, is perhaps not less essential to the peace of the 
union, than that which has been just examined. History gives 
us a horrid picture of the dissensions and private wars which dis- 
tracted and desolated Germany, prior to the institution of the im- 
perial CHAMBER by Maximilian, towards the close of the fifteenth 
century; and informs us, at the same time, of the vast influence 
of that institution, in appeasing the disorders, and establishing 
the tranquillity of the empire. This was a court invested with 
authority to decide finally all differences among the members of 
the Germanic body. 

A method of terminating territorial disputes between the states 



366 THE FEDERALIST. 

under the authority of the federal head, was not unattended to, 
even in the imperfect system by which they liave been hitherto 
held together. But there are other sources, besides interfering 
claims of boundary, from which bickerings and animosities may 
spring up among the members of the union. To some of these, 
we have been witnesses in the course of our past experience. It 
will readily be conjectured, that I allude to the fraudulent laws 
which have been passed in too many of the states. And though 
the proposed constitution establishes particular guards against the 
repetition of those instances, which have heretofore made theirap- 
pearance ; yet it is warrantable to apprehend, that the spirit which 
produced them will assume new shapes that could not "be foreseen 
nor specifically provided against. Whatever practices may have a 
tendency to disturb the harmony of the states, are proper objects 
of federal snj^erintendence and control. 

It may be esteemed the basis of the union, that " the citizens 
" of each state shall be entitled to all the privileges and immuni- 
" ties of citizens of the several states." And if it be a just princi- 
ple that every government ought to possess the means of executing 
its owti provisions, hy its own authority, it will follow, that in 
order to the inviolable maintenance of that equality of privileges 
and immunities to which the citizens of the union willbe entitled, 
the national judiciary ought to preside in all cases in which one 
state or its citizens are opposed to another state or its citizens. 
To secure the full effect of so fundamental a provision against all 
evasion and subterfuge, it is necessary that its construction should 
be committed to that tribunal, which having no local attachments 
will be likely to be impartial between the different states and 
their citizens, and which, owing its official existence to the union, 
will never be likely to feel any bias inauspicious to the principles 
on which it is founded. 

The fifth point will demand little animadversion. The most 
bigoted idolizers of state authority, have not thus far shown a dis- 
position to deny the national judiciary the cognizance of maritime 
causes. These so generally depend on the laws of nations, and 
so commonly affect the rights of foreigners, that they fall within 
the considerations which are relative to the public peace. The 
most important part of them are, by the present consideration, 
submitted to federal jurisdiction. 

The reasonableness of the agency of the national courts in cases 
in which the state tribunals cannot be supposed to be impartial, 
speaks for itself. No man ought certainly to be a judge in his 
own cause, or in any cause, in respect to which he has the least 
interest or bias. This principle has no inconsiderable weight in 
designating the federal courts, as the proper tribunals for the de- 
termination of controversies between different states and their citi- 
zens. And it ought to have the same operation, in regard to some 



THE FEDERALIST. 367 

cases, between citizens of the same state. Claims to land under 
grants of different states, founded upon adverse pretensions of 
boundary, are of this description. The courts of neither of the 
granting states could be expected to be unbiased. The laws may 
have even prejudged the question, and tied the courts down to 
decisions in favor of the grants of the state to which they be- 
longed. And where this had not been done, it would be natural 
that the judges, as men, should feel a strong predilection to the 
claims of their own government. 

Having thus laid down and discussed the principles which 
ought to regulate the constitution of the federal judiciary, we 
will proceed to tost, by these principles, the particular powers of 
which, according to the plan of the convention, it is to be com- 
posed. It is to comprehend "all cases in law and equity arising 
" under the constitution, the laws of the United States, and trea- 
" ties made, or which shall be made, under their authority ; to all 
"cases affecting ambassadors, other public ministers, and consuls; 
'•to all cases of admiralty and maritime jurisdiction; to contro- 
" versies to which the United States shall be a party; to contro- 
" versies between two or more states ; between a state and citizens 
"of another state ; between citizens of different states; between 
"citizens of the same state, claiming lands under grants of dif- 
" ferent states ; a^d between a state or the citizens thereof, and 
"foreign states, citizens, and subjects." This constitutes the en- 
tire mass of the judicial authority of the union. Let us now re- 
view it in detail. It is then to extend, — 

•( First. To all cases in law and equity, arisins; tinder the con- 
stitution and the laws of the United States. This corresponds 
with the two first classes of causes, which have been enumerated, 
as proper for the jurisdiction of the United States. It has been 
asked, what is meant by "cases arising under the constitution," 
in contradistinction from those "arising under the laws of the 
" United States ?" The difference has been already explained. All 
the restrictions upon the authority of the state legislatures furnish 
examples. They are not, for instance, to emit paper money ; but 
the interdiction results from the constitution, and will have no con- 
nexion with any law of the United States. Should paper money, 
notwithstanding, be emitted, the controversies concerning it would 
be cases arising under the constitution and not under laws of the 
United States, in the ordinary signification of the terms. This 
may serve as a sample of the whole. // 

It has also been asked, what need of the word " equity ?" 
What equitable causes can grow i.ul of the constitution and laws 
of the United States? There is hardly a subject of litigation be- 
tween individuals, which may not involve those ingredients of 
fraud, accident, trust, or hardship, which would render the mat- 
ter an object of equitable, rather than of legal jurisdiction, as the 



368 THE FEDERALIST. 

distinction is known and established in several of the states. It is 
the peculiar province, for instance, of a court of equity to relieve 
aa;ainst what are called hard bargains : these are contracts in which, 
though there may have been no direct fraud or deceit, sufficient to 
invalidate them in a court of law ; yet there may have been some 
undue and unconscionable advantage taken of the necessities or 
misfortunes of one of the parties, which a court of equity would 
not tolerate. In sucli cases, where foreigners were concerned on 
either side, it would be impossible for the federal judicatories to 
do justice without an equitable as well as a legal jurisdiction. 
Agreements to convey lands claimed under the grants of differ- 
ent states, may aff"ord another example of the necessity of an 
equitable jurisdiction in the federal courts. This reasoning may 
not be so palpable in those states where the formal and technical 
distinction between law and equity is not maintained, as in this 
state, where it is exemplified by every day's practice. 

The judiciary authority of the union is to extend — 

Second. To treaties made, or which shall be made, under the 
authority of the United States, and, to all cases affecting ambassa- 
dors, other public ministers and consuls. These belong to the 
fourth class of the enumerated cases, as they have an evident con- 
nexion with the preservation of the national peace. 

Third. To cases of admiralty and maritime jurisdiction. These 
form, altogether, the fifth of the enumerated classes of causes, pro- 
per for the cognizance of the national courts. 

Fourth. To controversies to which the United States shall be a 
party. These constitute the third of those classes. 

Fifth. To controversies between two or more states; between' 
a state , and citizens of another state ; between citizens of differ- 
ent states. These belong to the fourth of those classes, and par- 
take, in some measure, of the nature of the last. 

Sixth. To cases between the citizens of the same state, claim- 
ing lands under grants of different states. These fall within 
the last class, and are the only instatices in which the proposed 
constitution directly contemplates the cognizance of disputes be- 
tween the citizens of the same state. 

Seventh. To cases between a state and the citizens thereof, 
and foreign states, citizens or subjects. These have been already 
explained to belong to the fourth of the enumerated classes, and 
have been shown to be, in a peculiar manner, the proper subjects 
of the national judicature. 

From this review of the particular powers of the federal ju- 
diciary, as marked out in the constitution, it appears, that they are 
all conformable to the principles which ought to have governed the 
structure of that department, and which were necessary to the per- 
fection of the system. If some partial inconveniences should ap- 
pear to he cormected with the incorporation of any of them into 



THE FEDERALIST. 369 

the plan, it ought to be recollected, that the national legislature 
will have ample authority to make such exceptions^ and to pre- 
scribe such regulations, as will be calculated to obviate or remove 
these inconveniences. The possibility of particular mischiefs can 
never be viewed, by a well-informed mind, as a solid objection to 
a principle, which is calculated to avoid general mischiefs, and to 
obtain !J:eiieral advantages. PUBLTUS. 



BY ALEXANDER HAMILTON. 

A PtTRTHER VIEW OP THE JUDICIAL DEPAIITMENT, IN RELATION TO 
THE DISTRIBUTION OP ITS AUTHORITY. 

Let lis now return to i\\e partition of the judiciary authority 
between different courts, and their relations to each other. 

" The judicial power of the United States is to be vested in one 
'^' supreme court, and in such inferior courts as the congress may, 
*' from time to time, ordain and establish."* That there ought to 
be one court of supreme and final jurisdiction, is a proposition, 
which is not likely to be contested. The reasons for it have been 
assigned in another place, and are too obvious to need re|Tetition. 
The only question that seems to have been raised concerning it, is, 
whether it ought to be a distinct body, or a branch of the legisla- 
ture. The same contradiction is observable in regard to this mat- 
ter, which has been remarked in several other cases. The very 
men who object to the senate as a court of impeachments, on the 
ground of an improper intermixture of power, are advocates, by 
implication at Jeast, for the propriety of vesting the ultimate decis- 
ion of all causes, in the whole or in a part of the legislative body. 

The arguments, or rather suggestions, upon which this charge is 
founded, are to this effect :— -" The authority of the supreme court 
'■'■ of the United States, which is to be a separate and independent 
<'body v/ill be superior to that of tho legislature. The power of 
''construing the laws according to the spirit of the constitution, 
■" willenabfe that court to mould them into whatever shape it may 
*' think proper ; especially as its decisions will not be in any man- 
" ner subject to the revision or correction of the legislative body. 
•" This is as unprecedented as it is dangerous. In Britain, the ju- 
*" dicial power in the last resort, resides in the house of lords, 
*' which is a branch of the legislature ; and this part of the British 
" government has been imitated in the state constitutions in gene- 
^' ral. The parliament of Great Britain, and the legislatures of the 

Article 3, Sec. L 

47 



370 THE FEDERALIST. 

" several states, can at any time rectify, by law, the exceptionable 
" decisions of their respective courts. Bat the errors and usiirpa- 
" lions of the supreme court of the United States will be uncon- 
" trollable and remediless," This, upon examination, will be 
found to be altogether made up of false reasoning upon miscon- 
ceived fact. 

In the first place, there is not a syllable in the plan which di- 
rectly empowers the national courts to construe the laws according 
to the spirit of the constitution, or which gives them any greatei 
latitude in this respect, than maybe claimed by the courts ot 
every state. I admit, however, that the constitution ought to be 
the standard of construction for the law's, and that wherever there 
is an evident opposition, the laws ought to give place to the con- 
stitution. But this doctrine is not deducible from any circum- 
stance peculiar to the plan of the convention ; but from the general 
theory of a limited constitution ; and as far as it is true, is equally 
applicable to most, if not to all the state governments. There 
can be no objection, therefore, on this account, to the federal ju- 
dicature, which will not lie against the local judicatures in general, 
and which will not serve to condemn every constitution that at- 
tempts to set bounds to legislative discretion. 

But perhaps the force of the objection may be thought to con- 
sist in the particular organization of the supreme court : in its be- 
ing composed of a distinct body of magistrates instead of being 
one of the branches of the legislature, as in the government of 
Great Britain and that of this state. To insist upon this point, the 
authors of the objection must renounce the meaning they have la- 
bored to annex to the celebrated maxim, requiring a separation of 
the departments of power. It shall, nevertheless, be conceded to 
them, agreeably to the interpretation given to that maxim in the 
course of thes<', papers, that it is not violated by vesting the ultimate 
power of judging in a part of the legislative body. But though 
this be not an absolute violation of that excellent rule ; yet it verges 
so nearly ugon it, as on this account alone, to be less eligible than 
the mode preferred by the convention. From a body which had, 
even a partial agency in passing bad laws, we could rarely expect 
a disposition to temper and moderate them in the application. 
The same spirit which had operated in making them would be too 
apt to influence their construction : still less could it be expected, 
that men who had infringed the constitution, in the character of 
legislators, would be disposed to repair the breach in that of judges. 
Nor is this all ; every reason which recommends the tenure of good 
behavior for judicial offices, militates against placing the judiciary 
power, in the last resort, in a body composed of meti chosen for a 
limited period. There is an absurdity in referring the determina- 
tions of causes, in the first instance, to judges of permanent stand- 
ing ; in the last, to those of a temporary and mutable constitution. 



THE FEDERALIST. 371 

And there is a still greater absurdity in subjecting the decisions of 
men selected for their knowledge of the laws, acquired by long 
and laborious study,*to the revision and control of men, who, for 
want of the same advantage, cannot but be deficient in that knowl- 
edge. The members of the legislature will rarely be chosen with 
a view to those qualifications which fit men for the stations of 
judges ; and as, on this account, there will be great reason to ap- 
prehend all the ill consequences of defective information ; so on 
account of the toatural propensity of such bodies to party divisions, 
there will be no less reason to fear, that the pestilential breath of 
faction may poison the fountains of justice. The habit of being 
continually marshaled on opposite sides, will be too apt to stifle the 
voice both of law and of equity. 

These considerations teach us to applaud the wisdom of those 
states who have committed the judicial power, in the last resort, 
not to a part of the legislature, but to distinct and independent 
bodies of men. Contrary to the supposition of those who have repre- 
sented the plan of the convention, in this respect, as novel and un- 
precedented, it is but a copy of the constitutions of New Hamp- 
shire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, South Carohna and Georgia ; and the preference 
which has been given to those models is highly to be commended. 

It is not true, in the second place, that the parliament of Great 
Britain, or the legislatures of the particular states, can rectify the 
exceptionable decisions of their respective courts, in any other 
sense than might be done by a future legislature o( the United 
States. The theory, neither of the British, nor the state constitu- 
tions, authorizes the revisal of a judicial sentence by a legislative 
act. Nor is there any thing in the proposed constitution, more 
than in either of them, by which it is forbidden. In the former, as- 
in the latter, the impropriety of the thing on the general principle^ 
of law and reason, is the sole obstacle. A legislature, without ex- 
ceeding its province, cannot reverse a determination once made in 
a particular case ; though it may prescribe a new rule for future 
cases. This is the principle, and it applies in all its consequences, 
exactly in the same manner and extent to the state governments, 
as to the national government now under consideration. Not the 
least difference can be pointed out in any view of the subject. 

It may in the last place be observed, that the supposed danger 
of judiciary encroachments on the legislative authority, which has 
been upon many occasions reiterated, is in reality a phantom. 
Particular misconstructions and contraventions of the will of the 
legislature, may now and then happen ; but they can never be so 
extensive as to amount to an inconvenience, or in any sensible de- 
gree to affect the order of the political system. This may be in- 
ferred with certainty, from the general nature of the judicial pow- 
er ; from the objects to which it relates ; from the manner in which 



372 THE FEDERALIST. 

it is exercised ; from its comparative weakness ; and from its total 
incapacity to support its usurpations by force. ,. And the inference 
is greatly fortified by the consideration of the important constitu- 
tional check which the power of instituting impeachments in one 
part of the legislative body, and of determining upon them in the 
other, would give to that body upon the members of the judicial 
department. This is alone a complete security. There never can 
be danger that the judges, by a series of deliberate usurpations on 
the authority of the legislature, would hazard the united resent- 
ment of the body entrusted with it. while this body was possessed 
of the means of punishing their presumption, by degrading them 
from their stations. While this ought to remove all apprehensions 
on the subject, i4; alTords, at the same time, a cogent argument for 
constituting the senate a court for the trial of impeachments. 

Having now examined, and, I trust, removed the objections to 
the distinct and independent organization of the supreme court, I 
proceed to consider the propriety of the power of constituting in- 
ferior courts,* and the relations which will subsist between these 
and the former. 

The power of constituting inferior courts, is evidently calculated 
to obviate the necessity of having recourse to the supreme court 
in every case of federal cognizance. It is intended to enable the 
national government to institute or authorize, in each state or dis- 
trict of the United States, a tribunal competent to the determina- 
tion of matters of national jurisdiction within its limits. 

But why, it is asked, might not the same purpose have been ac- 
complished by the instrumentality of the state courts ? This ad- 
mits of different answers. Though the fitness and competency of 
these courts should be allowed in the utmost latitude ; yet the sub« 
stance of the power in question may still be regarded as a neces- 
sary part of the plan, if it were only to authorize the national leg- 
islature to commit to them the cognizance of causes arising out of 
the national constitution. To confer upon the existing courts of 
the several states the power of determining such causes, would 
perhaps be as much " to constitute tribunals," as to create new 
courts with the like power. But ought not a more direct and expli- 
cit provision to have been made in favor of the state courts ? There 
are, in my opinion, substantial reasons against such a provision : 
the n^ost discerning cannot foresee* how far the prevalency of a 
local spirit may be fomid to disqualify the local tribunals for the ju- 
risdiction of national causes ; whilst every man may discover, that 
courts constituted like those of some of tlie states would be impro- 

*This po-wer has been absurdly represented as intended to abolish all the coun- 
ty courts in the several states, which are commonly called inferioi- courts. But the 
expressions of the constitution are, to constitute "tribunals Inferior to the su- 
" PREME COURT ;" and the evident design of the provision is, to enable the institu- 
tion of local coiirts, subordinate to the supreme, either in states or larger districts.. 
It is ridiculous to imagine that county courts were in contemplatian^ 



THE FEDERALIST. 373 

per channels of the judicial authority of the union. State judges, 
holding their offices during pleasure, or from year to year, will be too 
little independent to be relied upon for an inflexible execution of the 
national laws. And if there \VaS a necessity for confiding to them 
the original cognizance of causes arising under those laws, there 
would be a correspondent necessity for leaving the door of appeal 
as wide as possible. In proportion to the grounds of confidence 
in, or distrust of the subordinate tribunals, ought to be the facility 
or difficulty of appeals. And well satisfied as I am of the propri- 
ety of the appellate jurisdiction, in the several classes of causes to 
which it is extended by the plan of the convention, 1 should con- 
sider every thing calculated to give, in practice, an U7irestrained 
course to appeals, as a source of public and private inconvenience. 

I am not sure, but that it will be found highly expedient and use- 
ful, to divide the United States into four, or five, or half a dozen 
districts ; and to institute a federal court in each district, in lieu of 
one in every state. The judges of these courts may hold circuits 
for the trial of causes in the several parts of the respective districts. 
Justice through them may be administered with ease and dispatch; 
and appeals may be safely circumscribed within a narrow com- 
pass. This plan appears to me at present the most eligible of any 
that could be adopted : and in order to it, it is necessary that the 
power of constituting inferior courts sliould exist in the full extent 
in which it is seen in the proposed constitution. 

These reasons seem sufficient to satisfy a candid mind, that the 
want of such a power would have been a great defect in the plan. 
Let us now examine, in what manner the judicial authority is to 
be distributed between the supreme and the inferior courts of the 
union. 

The supreme court is to be invested with original jurisdiction 
only " in cases affecting ambassadors, other public ministers, and 
'•consuls, and those in which a state shall be a party." Public 
ministers of every class are the immediate representatives of their 
sovereigns. All questions in which they are concerned are so di- 
rectly connected with the public peace, that, as well for the preser- 
vation of this, as out of respect to the sovereignties they represent, 
it is both expedient and proper, that such questions should be sub- 
mitted in the first instance to the highest judicatory of the nation. 
Though consuls have not in strictness a diplomatic character, yet 
as they are the public agents of the nations to which they belong, 
the same observation is in a great measure applicable to them. In 
cases in which a state might happen to be a party, it would ill 
suit its dignity to be turned over to an inferior tribuiial. 

Though it may rather be a digression from the immediate sub- 
ject of this paper, I shall take occasion to mention here a supposi- 
tion which has excited some alarm upon very mistaken grounds. 
It has been suggested that an assignment of the public securities 



374 THE FEDERALIST. 

of one state to the citizens of another would enable them to prose- 
cute that state in the federal courts for the amount of those secu- 
rities : a suggestion, which the following considerations prove to 
be without foundation. 

It is inherent in the nature of sovereignty, not to be amenable 
to the suit of an individual without its consent. This is the 
general sense, and the general practice of mankind ; and the ex- 
emption, as one of the attributes of sovereignty, is now enjoyed 
by the government of every state iu the union. Unless therefore 
.there is a surrender of this immiwiity in the plan of the convention, 
it will remain with the states, and the danger intimated must be 
merely ideal. The circumstances which are necessary to produce 
an alienation of state sovereignty, were discussed in considering 
the article of taxation, and need not be repeated here. A recur- 
rence to the principles there established will satisfy us, that there is 
no color to pretend that the state governments would, by the adop- 
tion of that plan, be divested of the privilege of paying their own 
debts in their own way, free from every constraint, but that which 
flows from the obligations of good faith. The contracts between 
ti nation and individuals are only binding on the conscience of the 
sovereign, and have no pretension to a compulsive force. They 
confer no right of action, independent of the sovereign will. To 
what purpose would it be to authorize suits against states for the 
debts they owe? How could recoveries be enforced? It is evi- 
dent, it could not be done, without waging war against the con- 
tracting state : and to ascribe to the federal courts, by mere impli- 
cation, and in destruction of a preexist n)g right of the state gov- 
ernments, a power which would involve such a consequence, 
would be altogether forced and unwarrantable. 

Let us resume the train of our observations. We have seen, 
that the original jurisdiction of the supreme court would be con- 
fined to two classes of causes, and those of a nature rarely to oc- 
cur. In all other cases of federal cognizance, the original juris- 
diction would appertain to the inferior tribunals ; and the supreme 
court would have nothing more than an appellate jurisdiction, 
" with such exceptions^ and imder such regulations^ as the con- 
^' gress shall make." 

The propriety of this appellate jm-isdiction has been scarcely 
called in question in regard to matters of law ; but the clamors have 
been loud against it as applied to matters of fact. Some well- 
intentioned men in this state, deriving their notions from the lan- 
guage and forms which obtain in our courts, have been induced to 
consider it as an implied supersedure of the trial by jury, in favor 
of the civil law mode of trial, which prevails in our courts of ad- 
miralty, probates, and chancery. A technical sense has been af- 
fixed to the term " appellate," which, in our law parlance, is 
commonly used in reference to appeals in the course of the civil 



THE FEDERALIST. 375 

law. But if t am not misinrormed, the same raeariing would not 
be given to it in any part of New England. There an appeal 
from one jury to another, is familiar both in language and practice 
and is even a matter of course, until there have been two verdicts 
on one side. The word " appellate," therefore, will not be under- 
stood in the same sense in New England as in New York, which 
shows the impropriety of a technical interpretation derived from 
the jurisprudence of a particular state. The expression taken in 
the abstract, denotes nothing more than the power of one tribunal 
to review the proceedings of another, either as to the law or fact, 
or both. The mode of doing it may depend on ancient custom 
or legislative provision ; in a new government it must depend on 
the latter, and may be with or without the aid of a jury, as may 
be jj^dged advisable. If, therefore, the reexamitiation of a fact 
once determined by a jury, should in any case be admitted under 
the proposed constitution, it may be so regulated as to be done by 
a second jmy, either by remanding the cause to the court below 
for a second trial of the fact, or by directing an issue immediately 
out of the supreme court. 

But it does not follow that the reexamination of a fact once as- 
certained by a jury, will be permitted in the supreme court. 
Why may not it be said, v/ith the strictest propriety, when a writ 
of error is brought from an inferior to a superior court of law in 
this state, that the latter has jurisdiction* of the fact, as well as 
the law? It is true it cannot institute a new inquiry concerning 
the fact, but takes cognizance of it as it appears upon the record, 
and pronounces the law arising upon it. This is jurisdiction of 
both fact and law ; nor is it even possible to separate them. 

Though the common law couits of this state ascertain disputed 
facts by a jury, yet they unquestionably have jurisdiction of both 
fact and law ; and accordingly when the former is agreed in the 
pleadings, they have no recourse to a jury, but proceed at once to 
judgment. I contend, therefore, on this ground, that the expres- 
sions, "appellate jurisdiction, both as to law and fact," do not 
necessarily imply a reexamination in the supreme court of facts 
decided by juries in the inferior courts. 

The following train of ideas may well be imagined to have influ- 
enced the convention, in relation to this particular piovision. The 
appellate jurisdiction of the supreme court, it may have been ar- 
gued, will extend to causes determinable in different modes, some 
in the course of the common law, others in the course of the civil 
LAW. In the former, the revision of the law only will be, generally 
speaking, the proper province of the supreme court ; in the lat- 
ter, the reexamination of the fact is agreeable to usage, and in 
some cases, of which prize causes are an example, might be essen- 
tial to the preservation of the public peace. It is therefore neces- 

* This -vvord is composed of jus and dictio, jiiris dictio, or a speaking or pro- 
nouncing of the law. 



376 THE FEDERALIST. 

sary, that the appellate jurisdiction should, iii certain cases, extend 
in the broadest sense to matters of fact. It will not answer to 
make an express exception of cases which shall have been origin- 
ally tried by a jury, because in the courts of some of the states all 
causes are tried in this mode ; * and such an exception would pre- 
clude the revision of matters of fact, as well where it might be 
proper, as v/here it might be improper. To avoid all inconve- 
niences, it v/ill be safest to declare generally, that the supreme 
court shall possess appellate jurisdiction, shall be subject to such 
Exceptions and regulations as the national legislature may prescribe. 
This will enable the government to modify it in such a manner 
as will best answer the ends of public justice and security. 

This view of the matter, at any rate, puts it out of all doubt 
that the supposed abolition of the trial bj"" jury, by the op^ation 
of this provision, is fallacious and untrue. The legislature of the 
United States would certainly have full power to provide, that in 
appeals to the supreme court there should be no reexamination of 
facts, where they had been tried in the original causes by juries. 
This would certainly be an authorized exception, but if, for the 
reason already intimated, it should be thought too extensive, it 
might be qualified with a limitation to such causes only as are 
determinable at common law in that mode of trial. 

The amount of the observations hitherto made on the authority 
of the judicial department is this : that it has been carefully re- 
stricted to those causes which are manifestly proper for the cogniz- 
ance of the national judicature ; that in the^partition of this au- 
thority, a very small portion of original jurisdiction has been re- 
served to the supreme court, and the rest consigned to the subordi- 
nate tribunals; that the supreme court will possess an appellate 
jurisdiction both as to law and fact, in all the cases referred to 
them, but sub}ect to any e.vceptioHs and regulations which may 
be thought advisable ; that this appellate jurisdiction does, in no 
case, abolish the trial by jury ; and that an ordinary degree of 
prudence and integrity in the national councils, will ensure us 
solid advantages from the establishment of the proposed judiciary, 
without exposing ns to any of the inconveniences which have 
been predicted from that source. PUBLIUS. 

* I hold that the states -vvill have concurrent jurisdiction with the subordinate 
federal judicatories, in many cases of federal cognizance, as •vvill be explained in 
my next paper. 



THE FEDERALIST. 377 

BY ALEXANDER HAMILTON. 

A FURTHER YIEW OP THE JUDICIAL DEPARTMENT, IN REPERENCE 
TO SOME MISCELLANEOUS QUESTIONS. 

The erection of a new government, whatever care or wisdom 
may distinguish the work, cannot fail to originate questions of in- 
tricacy and nicety ; and these may, in a particular manner, be ex- 
pected to flow from the estabhshment of a constitution founded 
upon the total or partial incorporation of a number of distinct 
sovereignties. Time only can mature and perfect so compound a 
system, liquidate the meaning of all the parts, and adjust them to 
each other in a harmonious and consistent whole. 

Such questions accordingly, have arisen upon the plan propos- 
ed by the convention, and particularly concerning the judiciary 
department. The principal of these respect the situation of th6 
state courts, in regard to those causes, v/hich are to be submitted 
to federal .jurisdiction. Is this to be exclusive, or are those courts 
to possess a concurrent jurisdiction ? If the latter, in what rela- 
tion will they stand to the national tribunals ? TheSe are inqui- 
ries which we meet with in the mouths of men of sense, and 
which are certainly entitled to attention. 

The principles established in a former j)aper* teach us that the 
states will retain all pre-existing authorities which may not be 
exclusively delegated to the federal head ; and that this exclusive 
delegation can only exist in one of three cases ; where an exclu- 
sive authority is, in express terms, granted to the union ; or where 
a particular authority is granted to the union, and the exercise of 
a like authority is prohibited to the states ; or where an authority 
is granted to the union, with which a similar authority in the 
states would be utterly incompatible. Though these principles 
may not apply with the same force to the judiciary, as to the 
legislative power ; yet I am inclined to think, that they are, m the 
main, just with respect to the former, as well as the latter. And 
under this impression, I shall lay it down as a rule, that the state 
courts will retain the jurisdiction they now have, unless it ap- 
pears to be taken away in one of the enumerated modes. 

The only thing in the proposed constitution, which wears the 
appearance of confining the causes of federal cognizance to the 
federal courts, is contained is this passage: — "The judicial 
" POWER of the United States shall be vested in one supreme court, 
^' and in such inferior courts as the congress shall from time to 
"time ordain and establish." This might either be construed to 
signify, that the supreme and subordinate courts of the union 

* No. XXXII. 

48 



378 THE FEDERALIST. 

should alone have the power of deciding those canses, to which 
their authority is to extend : or simply to denote, that the organs 
of the national judiciary should be one supreme court, and as 
many subordinate courts as congress should think proper to ap- 
point ; in other words, that the United States should exercise the 
judicial power with which they are to be invested, through one su- 
preme tribunal, and a certain number of inferior ones, to be insti- 
tuted by them. The first excludes, the last admits, the concur- 
rent jwisdiction of the state tribunals : and as the first would 
amount to an alienation of state power by implication, the last 
appears to me the most defensible construction. 

But this doctrine of concurrent jurisdiction, is only clearly ap- 
plicable to those descriptions of causes, of which the state courts 
have previous cognizance. It is not equally evident in relation to 
cases which may grow out of, and be peculiar to, the constitution 
to be established ; for not to allow the state courts a right of juris- 
diction in such cases, can hardly be considered as the abridgment 
of a preexisting authority. I mean not therefore to contend that 
the United States, in the "course of legislation upon the objects 
entrusted to their direction, may not commit the decision of caus- 
es arising npon a particular regulation, to the federal courts, solely, 
if such a measure should be deemed expedient :] but I hold that 
the state courts will be divested of no part of their primitive ju- 
risdiction, further than may relate to an appeal ; and I am even of 
opinion that in every case in which they were not expressly ex- 
cluded by the future acts of the national legislature, they will of 
course take cognizance of the causes to which those acts may 
give birth. This I infer from the nature of judiciary power, and 
from the general genius of the system. The judiciary power of 
every government looks beyond its own local or municipal laws, 
and in civil cases lays hold of all subjects of litigation between 
parties within its jurisdiction, though the causes of dispute are 
relative to the laws of the most distant part of the globe. Those 
of Japan, not less than of New York, may furnish the objects of 
legal discussion to our courts. When in addition to this we con- 
sider the state governments and the national governments, as they 
truly are, in the light of kindred systems, and as parts of one 
-whole, the inference seems to be conclusive, that the state courts 
would have a concurrent jurisdiction, in all cases arising under 
the laws of the union, where it was not expressly prohibited. 

Here another question occurs : what relation would subsist be- 
tween the national and state courts in these instances of concur- 
rent jurisdiction ? I answer, that an appeal would certainly lie 
from the latter, to the supreme court of the United States. The 
constitution in direct terms gives an appellate jurisdiction to the 
supreme court in all the enumerated cases of federal cognizance, in 
which it is not to have an original one, without a single expression 



THE FEDERALIST. 379 

to confine its operation to the inferior federal courts. The objects 
of appeal, not the tribunals from which it is to be made, are alone 
contempJaled. From this cirenmstance, and from the reason of 
the thing, it ought to be construed to extend to the state tribunals. 
Either this must be the case, or the local courts must be excluded 
from a concurrent jurisdiction in matters of national concern, else 
the judiciary authority of the union may be eluded at the pleasure 
of every plaintiff or prosecutor. Neither of these consequences 
ought, without evident necessity, to be involved ; the latter would 
be entirely inadmissible, as it would defeat some of the most im- 
portant and avowed purposes of the proposed government, and 
would essentially embarrass its measures. Nor do I perceive any 
foundation for such a supposition. Agreeably to the remark al- 
ready made, the national and state systems are to be regarded as 
ONE WHOLE. The courts of the latter will of course be natural 
auxiliaries to the execution of the laws of the union, and an ap- 
peal from them will as naturally lie to that tribunal, v/hich is des- 
tined to unite and assimilate the principles of national justice and 
the rules of national decision. The evident aim of the plan of 
the convention is, that all fhe causes of the specified classes shall, 
for weighty public reasons, receive their original or fsnal determin- 
ation in the courts of the union. To confine, therefore, the 
general expressions which give appellate jurisdiction to the su- 
preme court, to appeals from the subordinate federal courts, in- 
stead of allowing their extension to the state courts, would be to 
abridge the latitude of the terms, in subversion of the intent, con- 
trary to every sound rule of interpretation. 

But could an appeal be made to lie from the state courts, to the 
subordinate federal judicatories ? This is another of the questions 
which have been raised, and of greater difficulty than the former. 
The following considerations countenance the affirmative.. The 
plan of the convention, in the first place, authorizes the national 
legislature " to constitute tribunals inferior to the supreme court." * 
It declares, in the next place, that " the judicial power of the 
" United States shall be vested in one supreme court, and in such 
^' inferior courts as congress shall ordain and establish ;" and it then 
proceeds to enumerate the cases, to which this judicial power shall 
extend. It afterwards divides the jurisdiction of the supreme 
court into original and appellate, but gives no definition of that of 
ihe subordinate courts. The only outlines described for them are, 
that they shall be " inferior to the supreme court," and that they 
shall not exceed the specified limits of the federal judiciary. 
Whether their authority shall be original or appellate, or both, is 
not declared. All this seems to be left to the discretion of the 
legislature. And this being the case, I perceive at present no im- 
pediment to the establishment of an appeal from the state courts, 
to the subordinate national tribunals; and many advantages at- 

* Sec. 8th, art 1st 



380 THE FEDERALIST. 

tending the power of doing it may be imagined. It would di- 
minish the motives to the muhiplication of federal courts, and 
would admit of arrangements calculated t(i contract the appellate 
jurisdiction of the supreme court. The state tribunals may then 
be left with a more entire charge of federal causes: and appeals, 
in most cases in which they may be deemed proper, instead of 
being carried to the supreme court, may be made to lie from the 
state courts to district courts of the union. PUBLICS. 



nsrxjivcBEPi L2^:x:::^iii- 

BY ALEXANDER HAMILTON. 

A FURTHER VIEW OP THE JUDICIAL DEPARTMENT, IN RELATION TO 
THE TRIAL BY JURY. 

The objection to the plan of the convention, which has met 
with most success in this state, is relative to the want of a consti- 
tutional frovision for the trial by jury in civil cases. The disin- 
genuous form in which this objection is usually stated, has been 
repeatedly adverted to and exposed ; but continues to be pursued in 
all the conversations and writings of the opponents of the plan. 
The mere silence of the constitution in regard to civil causes^ is 
represented as an abolition of the trial by jury ; and the declama- 
tions to which it has afforded a pretext are artfully calculated to in- 
duce a persuasion, that this pretended abolition is complete and 
universal ; extending not only to every species of civil, but evtin to 
criminal causes. To argue with respect to the latter, would be as 
vain and fruitless, as to attempt to demonstrate any of those propo- 
sitions, which, by their own internal evidence, force conviction, 
when expressed in language adapted to convey their meaning. 

With regard to civil causes, subtleties almost too contemptible 
for refutation have been employed to countenance the surmise that a 
thing, which is only 7iot provided for, is entirely abolished. Every 
man of discernment must at once' perceive the wide difference 
between silence and abolition. But as the inventors of this falla- 
cy have attempted to support it by certain legal maxims of inter- 
pretation, which they have perverted from their true meaning, it 
may not be Avholly useless to explore the ground they have taken. 

The maxims on which they rely are of this nature : " A specifi- 
" cation of particulars is an exclusion of generals;" or, "The 
"expression of one thing is the exclusion of another." Hence, 
say they, as the constitution has established the trial by jury in 
criminal cases, and is silent in respect to civil, this silence is an 
implied prohibition of trial by jury, in regard to the latter. 



THE FEDERALIST. 381 

The rules of legal interpretation are rules of common sense, 
adopted by the courts in the construction of the laws. The true 
test, therefore, of a just application of them, is its conformity to 
the source from which they are derived. This being the case, let 
me ask, if it is consistent with common sense to suppose, that a 
provision obliging the legislative power to commit the trial of crim- 
inal causes to juries, is a privation of its right to authorize or per- 
mit that mode of trial in other cases? Is it natural to suppose, 
that a command to do one thing is a prohibition to the doing of 
another, which there was a previous power to do, and which is 
not incompatible with the thing commanded to be done? If 
such a supposition would bs unnatural and unreasonable, it can- 
not be rational to maintain, that an injunction of the trial by 
jury in certain cases, is an interdiction of it in others. 

A power to constitute courts is a power to prescribe the mode 
of trial ; and consequently, if nothing was said in the constitu- 
tion on the subject of juries, the legislature would be at liberty, 
eitherto adopt that institution, or to let it alone. This discretion, 
in regard to criminal causes, is abridged by an express injunc- 
tion ; but it is left at large in relation to civil causes, for the very 
reason that there is a total silence on the subject. The specifi- 
cation of an obligation to try all criminal causes in a particular 
mode excludes indeed the obligation of employing the same mode 
in civil causes, but does not abridge the poioer of the legislature to 
appoint that mode, if it should be thought proper. The pretence, 
therefore, that the national legislature would not be at liberty to 
submit all the civil causes of federal cognizance to the determin- 
ation of juries, is a pretence destitute of all foundation. 

From these observations, this conclusion results, that the trial 
by jury in civil cases would not be abolished ; and that the use 
attempted to be made of the maxims which have been quoted, is 
contrary to reason, and therefore inadmissible. Even if these 
maxims had a precise technical sense, corresponding with the ideas 
of those who employ them upon the present occasion, which, how- 
ever, is not the case, they would still be inapplicable to a consti- 
tution of government. In relation to such a subject, the natural 
and obvious sense of its provisions, apart from any techuical rules, 
is the true criterion of construction. 

Having now seen that the maxims relied upon will not bear the 
use made of them, let us endeavor to ascertain their proper appli- 
cation. This will be best done by examples. The plan of the 
convention declares, that the power of congress, or, in other words 
of the national legislature, shall extend to certain enumerated 
cases. This specification of particulars evidently excludes all pre- 
tension t(=> a general legislative authority ; because an affirmative 
grant of special powers would be absurd, as well as useless, if a 
general authority was intended. 



382 THE FEDERALIST. 

In like manner, the authority of the federal judicatures is de- 
clared by the constitution to comprehend certain cases particularly 
specified. The expression of those cases marks the precise limits, 
beyond which the federal courts cannot extend their jurisdiction ; 
because the objects of their cognizance being enumerated, the 
specification would be nugatory, if it did not exclude all ideas of 
more extensive authority. 

These examples are sufficient to elucidate the maxims which 
have been mentioned, and to designate the manner in which 
they should be used. 

From what has been said, it must appear unquestionably true, 
that trial by jury is in no case abolished by the proposed constitu- 
tion ; and it is equally true, that in those controversies between in- 
dividuals in which the great body of the people are likely to be in- 
terested, that institution will remain precisely in the situation in 
which it is placed by the state constitutions. The foundation of 
this assertion is, that the national judiciary will have no cogniz- 
ance of them, and of course they will remain determinable as here- 
tofore by the state courts only, and in the manner which the state 
constitutions and laws prescribe. All land causes, except where 
claims under the grants of different states come into question and 
all other controversies between the citizens of the same state, un- 
less where they depend upon positive violations of the articles of 
union, by acts of the state legislatures, will belong exclusively to 
the jurisdiction of the state tribunals. Add to this, that admiralty 
causes, and almost all those which are of equity jurisdiction, are 
determinable under our own government without the intervention 
of a jury; and the inference from the whole will be, that this 
institution, as it exists with us at present, cannot possibly be af- 
fected, to any great extent, by the proposed alteration in our sys- 
tem of government. 

The friends and adversaries of the plan of the convention, if 
they agree in nothing else, concur at least in the value they set 
upon the trial by jury ; or if there is any difference between them 
it consists in this: the former regard it as a valuable safeguard to 
liberty, the latter represent it as the very palladium of free govern- 
ment. For my own part, the more the operation of the institution 
has fallen under my observation, the more reason I have discover- 
ed for holding it in high estimation ; and it would be altogether 
superfluous to examine to what extent it deserves to be esteemed 
useful or essential in a representative republic, or how much more 
merit it may be entitled to, as a defence against the oppressions of 
an hereditary monarch, than as a barrier to the tyranny of popular 
magistrates in a popular government. Discussions of this kind 
would be more curious than beneficial, as all are satisfied of the 
utility of the institution, and of its friendly aspect to liberty. But 
I must acknowledge that I cannot readily discern the inseparable 



THE FEDERALIST. 383 

connexion between the existence of liberty, and the trial by jury 
in civil cases. Arbitrary impeachments, arbitrary methods of pros- 
ecuting pretended offences, arbitrary punishments upon arbitrary 
convictions, have ever appeared to me the great engines of judi- 
cial despotism ; and all these have relation to criminal proceedings. 
The trial by jury in criminal cases, aided by the habeas corpus 
act, seems therefore to be alone concerned in the question. And 
both of these are provided for, in the most ample manner, in the 
plan of the convention. 

It has Iteen observed, that trial by jury is a safeguard against", 
an oppressive exercise of the power of taxation. This observa- 
tion deserves to be canvassed. 

It is evident that it can have no influence upon the legislature, 
in regard to the amount of the taxes to be laid, to the objects up- 
on which they are to be imposed, or to the rule by which they 
are to be apportioned. If it can have any influence, therefore, it 
must be upon the mode of collection, and the conduct of the offi- 
cers entrusted with the execution of the revenue laws. 

As to the mode of collection in this state, under oar own con- 
stitution, the trial by jury is in most cases out of use. The taxes 
are usually levied by the more summary proceeding of distress 
and sale, as in cases of rent. And it is acknowledged on all hands, 
that this is essential to the eflicacy of the revenue laws. The dil- 
atory course of a trial at law to recover the taxes imposed on in- 
dividuals, would neither suit the exigencies of the public, nor pro- 
mote the convenience of the citizens. It would often occasion 
an accumulation of costs, more burthensome than the original 
sum of the tax to be levied. 

■ And as to the conduct of the officers of the revenue, the pro- 
vision in favor of trial by jury in criminal cases, will afford the 
desu'ed security. Wilful abuses of a public authority, to the op- 
pression of the subject, and every species of official extortion, are 
offences against the government ; for which the persons who com- 
mit them, may be indicted and punished according to the circum- 
stances of the case. 

The excellence of the trial by jury in civil cases, appears to de- 
pend on circumstances foreign to the preservation of liberty. The 
strongest argument in its favor is, that it is a security against cor- 
ruption. As there is always more time, and better opportunity, 
to tamper with the standing body of magistrates, than with a jury 
summoned for the occasion, there is room to suppose, that a cor- 
rupt influence would more easily find its way to the former than 
to the latter. The force of this consideration is, however, dimin- 
ished by others. The sheriff, who is the summoner of ordinary 
juries, and the clerks of courts, who have the nomination of the 
special juries, are themselves standing oflicers, and acting individ- 
ually, may be supposed more accessible to the touch of corruption 



384 THE FEDERALIST. 

than the judges, who are a collective body. It is not difficult to see, 
that it would be in the power of those officers to select jurors who 
would serve the purpose of the party as well as a corrupted bench. 
In the next place, it may fairly be supposed, that there would be 
less difficulty in gaining some of the jurors promiscuously taken 
from the public mass, than in gaining men who had been chosen 
by the government for their probity and good character. But mak- 
ing everjr deduction for these considerations, the trial by jury must 
still be a valuable check upon corruption. It greatly multiplies the 
impediments to its success. As matters now stand, it would be ne- 
cessary to corrupt both court and jury ; for where' the jury have 
gone evidently wrong, the court will generally grant a new trial, 
and it would be in most cases of little use to practice upon the jury, 
unless the court could be likewise gained. Here then is a double 
security; and it will readily be perceived, that this complicated 
agency tends to preserve the purity of both institutions. By increas- 
ing tl;e obstacles to success, it discourages attempts to seduce the 
integrity of either. The temptations to prostitution, which the 
judges might have to surmount, must certainly be much fewer, 
while the cooperation of a jury is necessary, than they might be, 
it they had themselves the exclusive determination of all causes. 

Notwithstanding, therefore, the doubts I have expressed, as to 
the essentiality of trial by jury in civil suits to liberty, I admit that~ 
it is in most cases, under proper regulations, an excellent method 
of determining questions of property; and that on this accoiuit 
alone, it would be entitled to a constitutional provision in its fa- 
vor if it were possible to fix with accuracy the limits within which 
it ought to be comprehended. This, however, is in its own nature 
an affair of much difficulty; and men not blinded by enthusiasm, 
must be sensible, that in a federal government, which is a compo- 
sition of societies whose ideas and institutions in relation to the 
matter, materially vary from each other, the difficulty must be not 
a little augmented. For my own part, at every new view I take 
of the subject, I become more convinced of the reality of the ob- 
stacles, which we are authoritatively informed, prevented the in- 
sertion of a provision on this head in the plan of the convention. 

The great difference between the limits of the jury trial in dif- 
ferent states, is not generally understood. And as it must have 
considerable influence on the sentence we ought to pass upon the 
omission complained of in regard to this point, an explanation of 
it is necessar5^ In this state, our judicial establishments resemble 
more nearly, than in any other, those of Great Britain. We have 
courts of common law, courts of probates, (analogous in certam 
matters to the spiritual courts of England,) a court of admiralty, 
and a court of chancery. In the courts of common law only, the 
trial by jury prevails, and this with some exceptions. In all the 
others, a single judge presides, and proceeds in general either ac- 



THE FEDERALIST. 385 

cording to the course of the canon or civil law, without the aid of 
a jury.* Li New Jersey, there is a ct)urt of chancery which pro- 
ceeds like ours, hut neither courts of admiralty, nor of probates, in 
the sense in which these last are established with us. In that state 
the courts of common law have the cognizance of those causes, 
which with us are determinable in the courts of admiralty and of 
probates, and of course the jury trial is more extensive iu New 
Jersey, than in New York. In Pennsylvania, this is perhaps still 
more the case, for there is no court of chancery in that state, and 
its common law courts have equity jurisdiction. It has a court of 
admiralty, but none of probates, at least on the plan of ours. Del- 
aware has in these respects imitated Pennsylvania. Maryland ap- 
proaches more nearly to New York, as does also Virginia, except 
that the latter has a plurality of chancellors. North Carolina bears 
most affinity to Pennsylvania ; South Carolina to Virginia. 1 be- 
lieve how^ev^er, that in some of those states which have distinct 
courts of admiralty, the causes depending in them are triable by 
Juries. In Georgia there are none but common law courts, and an 
appeal of course lies from the verdict of one jtny to another, which 
is called a special jiuy, and for which a particular mode of ap- 
pointment is marked out. In Connecticut, they have no distinct 
courts either of chancery or of admiralty, and their courts of pro- 
bates have no jurisdiction of causes. Their common law courts 
have admiralty, and, to a certain extent, equity jurisdiction. In 
cases of importance, their general assembly is the only court of 
chancery. In Connecticut, therefore, the trial by jury extends in 
practice funhei' than in any other state'yet mentioned. ""^Rhode 
Island is, I believe, in this particular, pretty much in the situation 
of Connecticut. Massachusetts and New Hampshire, in regard 
to the blending of law, equity, and admiralty jurisdictions, are in a 
similar predicament, in the four eastern states, the trial by jury 
not only stands upon a broader foundation than the other states, 
but it is attended v/ich a peculiarity unknown, in its full extent, to 
any of them. There is an appeal of course from one jury to 
another, till there have been two verdicts out of three on one side. 
Prom this sketch it appears, that there is a material diversity, as 
well in the modification as in the extent of the institution of trial 
by jury i!i civil cases, in the several states^ and from this fact, 
these obvious reflections flow : first, that no genera! rule could 
have been fixed upon by ihe convention, which would have corre- 
sponded v/ith the circumstances of all the states ; and secondly, 
that more, or at least as much might have been hazarded, by tak- 
ing the system of any one state for a standard, as by omitting a 

* It has been ciToneously insinuated, Tvitli regflixl to the coiirt of chancery, that ,, 
this court generally tries disputed facts by a jury, ^l"he trnth is, that references to 
a jury in that court rarely happen, and aic iu no case necessary but where the 
validity of a devise of land com<?s into question. 

49 



386 THE FEDERALIST. 

provision altogether, and leaving the matter as has been done to 
legislative regulation. 

The propositions which have been made for supplying the omis- 
sion, have rather served to illustrate, than to obviate the difficulty 
of the thing. The minority of Pennsylvania have proposed this 
mode of expression for the purpose. " Trial by jury shall be as 
•* heretofore j" and this I maintain would be inap[)licable and in- 
determinate. The United States, in their collective capacity, are 
the OBJECT to which all general provisions in the constitution 
must be understood to refer. Now, it is evident, that though trial 
by jury, with various limitations, is known in each state individ- 
ually, yet in the United States, as such, it is, strictly speaking, 
unknown ; because the present federal government has no judi- 
ciary power whatever, and con;-equently, there is no antecedent 
establishment, to which the term "heretofore" could properly re- 
late. It would therefore be destitute of precise meaning, and in- 
operative from its uncertainty. 

As on the one hand, the form of the provision would not fulfill 
the intent of its proposers ; so on the other, if I apprehend that in- 
tent rightly, it would be in itself inexpedient. I presume it to be, 
that causes in the federal courts should be tried by jury, if in the 
state where the court sat, that mode of trial would obtain in a 
similar case in the state courts — that is to say, admiralty causes 
should be tried in Connecticut by a jury, in New York without 
one. The capricious operation of so dissimilar a method of trial 
in the same cases, under the same government, is of itseit sufficient 
to indispose every well-regulated judgment towards it. Whether 
the cause should be tried with or without a jury, would depend, 
in a great number of cases, on the accidenJal situation of the 
court and parties. 

But this is not, in my estimation, the greatest objection. I feel 
a deep and deliberate conviction, that there are many cases in 
which the trial by jury is an ineligible one. I think it so particu- 
larly, in suits which concern the public peace with foreign nations ; 
that is, in most cases where the question tiH'ns wholly on the laws 
of nations. Of this nature, among others, are all prize causes. 
Juries cannot be supposed competent to investigations, that require 
a thorough knowledge of the laws and usages of nations ; and they 
will sometimes be under the influence of impressions which will 
not suffer them to pay sufficient regard to those coiisidcratiotis of 
public policy, which ought to guide their inquiries. There would 
of course be always danger, that the rights of other nations might 
be infringed by their decisions, so as to afford occasions of reprisal 
and war. Though the true province of juries be to determine 
.matters of fact, yet in most cases, legal consequences are com- 
plicated with fact in such a manner, as to render a separation 
impracticable. 



THE FEDERALIST. 387 

It will add great weight to this remark, in relation to prize 
causes, to mention that the method or determining them has been 
thought worthy of particular regulation in various treaties between 
different powers of Europe, and that pursuant to such treaties, they 
are determinable in Great Britain in the last resort before the king 
himself in his privy council, where the fact as well as the law, un- 
dergoes a reexamination. This alone demonstrates the impolicy 
of itiserting a fundamental provision in the constitution which 
would make the state systems a standard for the national govern- 
ment in the article under consideration, and the danger of encum- 
bering the government with any constitutional provisions, the pro- 
priety of which is not indisputable. 

My convictions are equally strong, that great advantages result 
from the separation of the equity from the law jurisdiction ; and 
that the causes which belong to the former, would be improperly 
committed to juries. The great and primary use of a court of 
equity, is to give relief in extraordinary cases, which are excep- 
tions* to general rules. To unite the jurisdiction of such cases, 
with the ordinary jurisdiction, must have a tendency to unsettle 
the general rules, and to subject every case that arises to a special 
determination : while a separation between the jurisdictions has the 
contrary elfect of rendering one a sentinel over the other, and of 
keeping each within the expedient limits. Besides this, the cir- 
cumstances that constitute cases proper for courts of equity, are in 
many instances so nice and intricate, that they are incompatible 
with the genius of trials by jury. They require often such long 
and critical investigation, as would be impracticable to men called 
occasionally from their occupations, and obliged to decide before 
they were permitted to return to them. The simplicity and expe- 
dition which form the distinguishing characters of this mode of 
trial require, that the matter to be decided should be reduced to 
some single and obvious point ; while the litigations usual in chan- 
cery, frequently comprehend a long train of minute and independ- 
ent particulars. 

It is true, that the separation of the equity from the legal juris- 
diction is peculiar to the English system of jurisprudence : the 
model which has been followed in several of the states. But it is 
equally true, that the trial by jury has been unknown in every in- 
stance in which they have been uiiited. And the separation is es- 
sential to the preservation of that institution in its pristine purity. 
The nature of a court of equity will readily permit the extension 
of its jurisdiction to matters of law ; but it is not a little to be sus- 
pected, that the attempt to extend the jurisdiction of the courts of 
law to matters of equity will not only be unproductive of the ad- 

* It is true that the principles by which that relief is governed are now reduced 
to a regular system ; but it is not the less true that they are in the main applicable 
to SPECIAL circumstances, which form exceptions to general rules. 



388 THE FEDERALIST, 

vantages whish may be derived from courts of ctiancery on the 
plan upon which they are established in this state, but will tend 
gradually to change the nature of the courts of \a.Wy and to under- 
mine the trial by jury, by introducing questions too complicated 
for a decision in that mode. 

These appear to be conclusive reasons against incorporating the 
systems of all the states, in the formation of the national judiciary ; 
according to what may be conjectured to have been the intent of 
the Pennsylvania minority. Let us now examine, how far the 
proposition of Massachusetts is calculated to remedy the supposed 
defect. 

It is in this form : " In civil actions between citizens of different 
'• states, every issue of fact, arising in actions at common lam, 
" may be tried by a jury if the parties, or either of them, request it.'^ 

This, at best, is a proposition confined to one description of 
causes ; and the inference is fair, either that the Massachusetts 
convention considered that as the only class of federal causes, in 
which the trial by jury would be proper; or that if desirous of a 
more extensive provision, they found it impracticable to devise one 
which would properly answer the end. If the first the omission 
of a regulation respecting so partial an object, can never be consid- 
ered as a materia! imperfection in the system. If the last, it af- 
fords a strong corroboration of the extreme difficulty of the thing. 

But this is not all : if we advert to the observations already made 
respecting the courts that subsist in the several states of the union, 
and the different powers exercised by them, it will appear, that 
there are no expressions more vague and indeterminate than those 
which have been employed to characterize that species of causes 
which it is intended shall be entitled to a trial by jury. In this 
state, the boundaries between actions at common law and actions 
of equitable jurisdiction, are ascertained in conformity to the rules 
which prevail in England upon that subject. In many of the other 
states, the boundaries are less precise. In some of them, every 
cause is to be tried in a court of common law and upoi] that foun- 
dation every action may be considered as an action at common law, 
to be determined by a jin-y. if the parties, or either of them, choose 
it. Hence the same irregularity and confusion would be intro- 
duced by a compliance with this proposition, that I have already 
noticed as resulting from the regulation proposed by the Pennsyl- 
vanian minority. In one state a cause would receive its deter- 
mination from a jury, if the parties, or either of them, requested 
it ; but in another state, a cause esractly similar to the other, must 
be decided without the intervention of a jury, because the state 
tribunals varied as to common law jurisdiction. 

It is obvious, therefore, that the Massachusetts proposition can- 
not operate as a general regulation, until some uniform plan, with 
respect to the limits of common law and equitable jurisdictions, shall 



THE FEDERALIST. 389 

be adopted by the different states. To devise a plan of that kind, 
is a task arduous in itself, and which it would require much time 
and reflection to mature. It would be extremely difficult, if not 
impossible, to suggest any general regulation that would bo ac- 
ceptable to all the states in the union or that would perfectly 
quadrate with the several state institutions. 

It may be asked, why could not a reference have been made to 
the constitution of this state, taking that, which is allowed by me 
to be a good one, as a standard for the United States ? I ansv/er, 
that it is not very probable the other states should entertain the 
same opinion of our institutions which we do ourselves. It is nat- 
ural to suppose that they are more attached to their own, and that 
each would struggle for the preference. If the plan of taking one 
stale as a model for the whole had been thought of in the conven- 
tion, it is to be presumed that the adoption of it in that body, 
would have been rendered difficult by the predilection of each 
representation in favor of its own government; and it must be 
uncertain, which of the states would have been taken as the model. 
It has been shown that maiiy of them would be improper ones. 
And I leave it to conjecture, whether, mider all circumstances, it 
is most likely that New York, or some other state, would have been 
preferred. But admit that a judicious selection could have been 
effected in the convention, still there would have been great dan- 
ger of jealousy and disgust in the other states at the partiality 
which had been shown to the institutions of one. The enemies 
of the plan would have been furnished with a fine pretext, for 
raising a host of local prejudices against it, which perhaps might 
have hazarded, in no inconsiderable degree, its final establishment. 

To avoid the embarrassments of a definition of the cases which 
the trial by jury ought to embrace, it is sometimes suggested by 
men of enthusiastic tempers, that a provision might have been 
inserted for establishing it in all cases whatsoever. For this, I be- 
lieve no precedent is to be found in any member of the union ; 
and the considerations which have been stated in discussing the 
proposition of the minority of Pennsylvania, must satisfy every 
sober mind, that the establishment of the trial by jury in all cases 
would have been an unpardonable error in the plan. 

In short, the more it is considered, the more arduous will ap- 
pear the task of fashioning a provision in such a form as not to 
express too little to answer the purpose, or too much to be advis- 
able ; or which might not have opened other sources of opposi- 
tion, to the great and essential object, of introducing a firm na- 
tional government. 

I cannot but persuade myself on the other hand, that the differ- 
ent lights in which the subject has been placed in the course of 
these observations, will go far towards removing in candid minds, 
the apprehensions they may have entertained on the point. They 



390. THE FEDERALIST. 

have tended to show, that the security of liberty is materially con- 
cerned only in the trial by jury in criminal cases, which is provided 
for in the most ample manner in the plan of the convention ; that ■ 
even in far the greatest proportion of civil cases, those in which the 
great body of the community is interested, that mode of trial will 
remain in full force, ris established in the state constitutions, un- 
touched and unaffected by the plan of the convention ; that it is in 
no case abolished* by that plan ; and that there are great, if not 
insurmountable difficulties in the way of making any precise and 
proper provision for it, in the constitution for the United States. 

. The best judges of the matter will be the least anxious for a con- 
stitutional establishment of the trial by jury in civil cases, and will 
be the most ready to admit, that the (changes which are continually 
happening in the affairs of society, may render a different mode of 
determining questions of property preferable in many cases in 
which that mode of trial now prevails. For my part I acknowl- 
edge myself to be convinced, that even in this state it might be ad- 
vantageously extended to some cases to which it does not at present 
apply, and might as advantageously be abridged in others. It is con- 
ceded by all reasonable men, that it ought not to obtain in all cases. 
The examples of innovations which contract its ancient limits as 
well in these states as in Great Britain afford a strong presumption 
that its former extent has been found inconvenient ; and give room 
to suppose that future experience may discover the propriety and 
utility of other exceptions. 1 suspect it to be impossible in the na- 
ture of the thing, to fix the salutary point at which the operation 
of the institution ought to stop ; and this is with me a strong ar- 
gument for leaving the matter to the discretion of the legislature. 
This is now clearly understood to be the case in Great Britain, 
and it is equally so in the state of Connecticut; and yet it may 
be safely affirmed, that more numerous encroachments have been 
made upon the trial by jury in this state since the revolution, though 
provided for by a positive article of our constitution, than has hap- 
pened in the same time either in Connecticut or Great Britain. It 
may be added, that these encroachments have generally originated 
with the men who endeavor to persuade the people they are the 
warmest defenders of popular liberty, but who have rarely suffered 
constitutional obstacles to arrest them in a favorite career. The 
truth is, that the general genius of a government is all that can be 
substantially relied upon for permanent effects. Particular provis- 
ions, though not altogether useless, have far less virtue and efficacy 
than are commonly ascribed to them ; and the want of them will 
never be with men of sound discernment, a decisive objection to 

* Vide No. LXXXI, in whicli the supijosition, of its being abolished by the ap- 
pellate jurisdiction in matters of fact being vested in the supreme court, is exam- 
ined and refuted. 



THE FEDERALIST. 391 

any plan which exhibits the leadmg characters of a good govern- 
ment. 

It certainly sounds not a little harsh and extraordinary to affirm 
that there is no security for liberty in a constitution wfiich express- 
ly establishes a trial by jury in criminal cases, because it does not 
do it in civil also ; while it is a notorious fact that (Connecticut, 
which has been always regarded as the most popular state in the 
union, can boast of no constitutional provision for either. 

PUBLIUS. 



BY ALEXANDER HAMILTON. 
CONCERNING SEVERAL MISCELLANEOUS OBJECTIONS. 

In the course of the foregoing review of the constitution, 1 have 
endeavored to answer most of the objections which have appeared 
against it. There remain, however, a few which either did not 
fall naturally under any particular head, or were forgotten in their 
proper places. These shall now be discussed : but as the subject 
has been drawn into great length, I shall so far consult brevity, as 
to comprise nil my observations on these miscellaneous points in 
a single paper. 

The most considerable of the remaining objections is, that the 
plan of the convention contains no bill of rights. Among other 
answers given to this, it has been upon different occasions remark- 
ed, that the constitutions of several of the states are in a similar 
predicament. I add, that New York is of the number. And yet 
the persons who in this state oppose the new system, while they 
profess an unlimited admiration for our particular constitution, are 
among the most intemperate partizans of a bill of rights. I'o jus» 
tify their zeal in this matter, they allege two things: one is, that 
though the constitution of New York has no bill of rights prefix- 
ed to it, yet it contains in the body of it, various provisions in fa- 
vor of particular privileges and rights, which, in substance, amount 
to the same thing ; the other is, that the constitution adopts, in 
their full extent, the common and statute law of Great Britain, by 
which many other rights, not expressed, are equally secured. 

To the first I answer, that the constitution offered by the con- 
vention contains, as well as the constitution of this state, a num- 
ber of such provisions. 

Independent of those which relate to the structure of the gov- 
ernment, we find the following: — Article 1, section 3, clause 7, 
"judgment in cases of in)peachment shall not extend further than 
" to removal from office, and disqualification to ho*d and enjoy any 



392 THE FEDERALIST. 

*' ofRce of honor, trust or profit under the United States ; bnt the 
" party convicted shall nevertheless, be liable and subject to indict- 
" ment, trial, judgment and punishment according to law." Sec- 
tion 9, of the same article, clause 2. "The privilege of the writ 
*'of habeas corpus shall not be suspended, unless when in cases 
" of rebellion or invasion the public safety may require it." Clause 
3. "No bill of attainder or ex post facto law shall be passed." 
Clause 7. "No title of nobility shall he granted by the United 
" States; and no person holding any office of profit or trust under 
"them, shall, without the consent of the congress, accept of any 
"present, emolument, office or title of any kind whatever, from 
"any king, prince, or foreign state." Article 3, section 2, clause 3. 
*'The trial of all crimes, except in cases of impeachment, shall be 
" by jury ; and such trial shall be held in the state where the said 
"crimes shall have been committed; but when not committed 
" within any state, the trial shall be at such place or places as the 
"congress may by law have directed." Section 3, of the same 
article. " Treason against the United States, shall consist only in 
" levying war against them, or in adhering to their enemies, giving 
"them aid and comfort. No person shall be convicted of treason, 
"unless on the testimony of two witnesses to the same overt act, 
" or on confession in open court." And clause 3, of the same sec- 
tion. •• The congress shall have power to declare the punishmtmt 
"of treason ; but no attainder of treason shall work corruption of 
" blood, or forfeiture, except during the life of the person attainted." 
Il It may well be a question, whether these are not, upon the whole, 
of equal importance with any which are to be found in the consti- 
tution of this state. The establishment of the writ of habeas cor- 
pus^ the prohibition of ex post facto laws, and of titles of nobil- 
ity, to which toe have no cGrresponding provisions in our consti- 
tution^ are perhaps greater securities to liberty than any it con- 
tains. The creation of crimes after the commission of the fact, 
or. in other words, the subjecting of men to punishment for things 
which, when they were done, were breaches of no law ; and the 
practice of arbitrary imprisonments, have been in all ages, the fav- 
orite and most formidable instruments of tyranny. The observa- 
tions of the judicious Blackstone,* in reference to the latter, are 
well worthy of recital : " To beieave a man of life fsays he) or by 
" violence to confiscate his estate without accusation or trial, would 
" be so gross and notorious an act of despotism, as must at once 
"convey the alarm of tyranny throughout the whole nation : but 
"confinement of the person, by secretly hurrying him to jail, 
" where hia sufferirjgs are unknown or forgotten, is a less public, 
"a less striking, and therefore a more dangerous engine ol arbi- 
" trary government." And as a remedy for this fatal evil, he is 
every where peculiarly emphatical in his encomiums on the ha- \ 

* Vide Blackstonc's Commentaries, vol. 1, page 136. 



THE FEDERALIST. 393 

beas corpus act, which in one place he calls " the bulwark of \ 
" the British constitution."* \\ \ 

Nothing need be said to illustrate the importance of the prohi- 
bition of titles of nobility. This may truly be denominated the 
corner-stone of republican government ; for so long as they are 
excluded, there can never be serious danger that the government 
will be any other than that of the people. 

To the second, that is, to the pretended establishment of the 
common and statute law by the constitution, I answer, that they 
are expressly made subject "to such alterations and provisions as 
" the legislature shall from time to time make concerning the same." 
They are therefore at any moment liable to repeal by the ordinary 
legislative power, and of course have no constitutional sanction. 
The only use of the declaration was to recognize the ancient law, 
and to remove doubts which might have been occasioned by the 
revolution. This consequently can be considered as no part of a 
declaration of rights ; which under our constitutions must be in- 
tended to limit the power of the government itself. 

It has been several times truly remarked, that bills of rights are, 
in their origin, stipulations between kings and their subjects, 
abridgments of prerogative in favor of privilege, reservations of 
rights not surrendered to the prince. Such was magna charta, 
obtained by the barons, sword in hand, from king .Tohn. Such 
were the subsequent confirmations of that charter by succeeding 
princes. Such was the petition of right assented to by Charles 
the first, in the beginning of his reign. Such also, was the declar- 
ation of right presented by the lords and commons to the prince 
of Orange in 1688, and afterwards thrown into the form of an act 
of parliament called the bill of rights. It is evident, therefore, that 
according to their primitive signification, they have no application 
to constitutions professedly founded upon the power of the people, 
and executed by their immediate representatives and servants. 
Here, in strictness, the people surrender nothing : and as they re- 
tain every thing, they have no need of particular reservations. 
*' We, the people of the United States, to secure the blessings of 
" liberty to ourselves and our posterity, do ordnin and establish 
" this constitution for the United States of America;" this is a 
better recognition of popular rights, than volumes of those aphor- 
isms, which make the principal figure in several of our state bills 
of rights, and which would sound much better in a treatise of 
ethics, than in a constitution of government. 

But a minute detail of particular rights, is certainly far less appli- 
cable to a constitution like that under consideration, which is mere- 
ly intended to regulate the general political interests of the nation, 
than to one which has the regulation of every species of personal 
and private concerns. If therefore, the loud clamors against the 

* Vide Blackstone's Commentaries, vol. 4, page 438. 

50 



394 THE FEDERALIST. 

plan of the convention, on this score, are well founded, do epi- 
thets of reprobation will be too strong for the constitution of this 
state. Bnt the truth is, that both of them contain all which,, in 
relation to their objects, is reasonably to be desired. 

I go farther, and affirm, that bills of rights, in the sense and to 
the extent they are contended for, are not only unnecessary in the 
proposed constitution, but would even be dangerous. They would 
contain various exceptions to powers not granted ; and on this very 
account, would afford a colorable pretext to claim more than were 
granted. For why declare that things shall not be done which 
there is no power to do ? Why, for instance, should it be said, 
that the liberty of the press shall not be restrained, when no power 
is given by which restrictions may be imposed ? I will not con- 
tend that such a provision would confer a regulating power ; but 
it is evident that it would furnish, to men disposed to usurp, a 
plausible pretence for claiming that power. They might urge with 
a semblance of reason, that the constitution ought not to be charg- 
ed with the absurdity of providing against the abuse of an author- 
ity, which was not given, and that the provision against restrain- 
ing the liberty of the press afforded a clear implication, that a 
right to prescribe proper regulations concerning it was intended 
to be vested in the national government. This may serve as a 
specimen of the numerous handles which would be given to the 
doctrine of constructive powers^ by the indulgence of an injudi- 
cious zeal for bills of rights. 

On the subject of the liberty of the press, as much has been 
said, I cannot forbear adding a remark or two ; in the first place^ 
I observe, that there is not a syllable concerning it in the constitu- 
tution of this state ; in the next, I contend, that whatever has been 
said about it in that of any other state, amounts to nothing. What 
signifies a declaration, that " the liberty of the press shall be invi- 
"olably preserved ?" What is the liberty of the press ? Who can 
give it any definition which would not leave the utmost latitude for 
evasion ? I hold it to be impracticable ; and from this I infer^ that 
its security, whatever fine declarations may be inserted in any con- 
stitution respecting it, must altogether depend on public opinion, 
and on the general spirit of the people and of the government* 

* To sliow ttat there is a power in the constitution, by which the liberty of the 
press may be affected, recourse has been had to the power of taxation. It is said, 
that duties may be^ laid upcoi publications so high as to amount to a prohibition. I 
know not by what logic it could be maintained, that the declarations in the state 
constitutions, in favor of the freedom of the press would be a constitutional im- 
pediment to the imposition of duties upon publications by the state legislatures. It 
cannot certainly be pretended that any degree of duties, however low, would be 
an abridgment of the liberty of the press. We know that newspapers are taxed 
in Great Britain, and yet it is notorious that the press nowhere enjoys greater lib- 
erty than in that country. And if duties of any kind may be laid without a viola- 
tion of that liberty, it is evident that the extent must depend on legislative discre- 
tion, regulated by public opinion j so that after all, general declarations raspecting 



THE FEDERALIST. 395 

And here, after all, as is intimated upon another occasion, must 
we seek for the only solid basis of our rights. 

There remains but one other view of this matter to conclude 
the point. The truth is, after all the declamation we have heard, 
that the constitution is itself, iti every rational sense, and to every 
!iseful purpose, a bill of rights. The several bills of rights in 
Great Britain, form its constitution, and conversely the constitu- 
tion of each state is its bill of rights. In like manner the pro- 
posed constitution, if adopted, will be the bill of rights of the 
union. Is it one object of a bill of rights to declare and specify 
the political privileges of the citizens in the structure and adminis- 
tration of the government? This is done in the most ample and 
precise manner in the plan of the convention ; comprehending 
various precautions for the public security, which are not to be 
found in any of the state constitutions. Is another object of a 
bill of rights to define certain immunities and modes of proceed- 
ing, v/hich are relative to personal and private concerns ? This 
we have seen has also been attended to, in a variety of cases, in 
the same plan. Adverting therefore to the substantial meaning of 
a bill of rights, it is absurd to allege that it is not to be found in 
the work of the convention. It may be said that it does not go far 
enough, though it will not be easy to make this appear ; but it 
can with no propriety be contended, that there is no such thing, 
ft certainly must be immaterial what mode is observed as to the 
order of declaring the rights of the citizens, if they are provided 
for in any part of the instrument which establishes the govern- 
ment: whence it must be apparent, that much of what has been 
said on this subject rests merely on verbal and nominal distinctions, 
entirely foreign to the substance of the thing. 

Another obj<^ction, which, from the frequency of its repetition, 
may be presumed to be relied on, is of this nature; it is improper 
(say the objectors) to confer such large powers, as aie proposed, 
wpon the national government ; because the seat of that govern- 
ment must of necessity be too remote from many of the states to 
admit of a proper knowledge on the part of the constituent, of the 
conduct of the representative body. This argument, if it proves 
any thing, proves that there ought to be no general government 
whatever. For the powers which, it seems to be agreed on all 
hands, ought to be vested in the union, cannot be safely entrusted 
to a body which is not under every requisite control. But there 
are satisfactory reasons to show, that the objection is, in reality, 
not well founded. There is in most of the arguments which relate 

the liberty of tlie pi-ess, will give it no greater security than it will have without 
them. The same invasions of it may be effected under the state constitutions which 
contain those declarations through the means of taxation, as under the proposed 
constitution, which has nothing of the kind. It would be quite as significant to 
declare, that government ought to be free, that taxes ought not to be excessive, &c., 
as tha.t the liberty of the press ought not to be restrained. 



396 THE FEDERALIST. 

to distance a palpable illusion of the imagination. What are the 
sources of information, by which the people in any distant county 
must regulate their judgment of the conduct of their representa- 
tives in the state legislature ? Of personal observation they can 
have no benefit. This is confined to the citizens on the spot. 
They must therefore depend on the information of intelligent men, 
in whom they confide : and how must these men obtain their in- 
formation ? Evidently from the complexion of public measures, 
from the public prints, from correspondences with their repre- 
sentatives, and with other persons Vt^ho reside at the place of their 
deliberations. 

It is equally evident, that the like sources of information would 
be open to the people, in relation to the conduct of their represen- 
tatives in the general government : and the impediments to a 
prompt communication which distance may be supposed to create, 
will be overbalanced by the effects of the vigilance of the state 
governments. The executive and legislative bodies of each state 
will be so many sentinels over the persons employed in every de- 
partment of the national administration ; and as it will be in their 
power to adopt and pursue a regular and effectual system of intel- 
ligence, they can never be at a loss to know the behavior of those 
who represent their constituents in the national councils, and can 
readily communicate the same knowledge to the people. Their 
disposition to apprize the community of whatever may prejudice 
its interests from another quarter, may be relied upon, if it were 
only from the rivalship of power. And we may conclude with 
the fullest assurance, that the people, through that channel, will 
be better informed of the conduct of their national representa- 
tives, than they can be by any means they now possess, of that 
of their state representatives. 

It ought also to be remembered, that the citizens who inhabit 
the country at and near the seat of government will, in all ques- 
tions that affect the general liberty and prosperity, have the same 
interest with those who are at a distance ; and that they will stand 
ready to sound the alarm when necessary, and to point out the 
actors in any pernicious project. The public papers will be ex- 
peditious messengers of intelligence to the most remote inhabi- 
tants of the union. 

Among the many curious objections which have appeared 
against the proposed constitution, the most extraordinary and the 
least colorable is derived from the want of some provision respect- 
ing the debts due to the United States. This has been represent- 
ed as a tacit relinquishment of those debts, and as a wicked contri- 
vance to screen public defaulters. The newspapers have teemed 
with the most inflammatory railings on this head ; yet there is noth- 
ing clearer than that the suggestion is entirely void of foundation, 
the offspring of extreme ignorance or extreme dishonesty. In ad- 



THE FEDERALIST. 397 

dition to the remarks I have made upon the subject in another 
place, I shall only observe, that as it is a plain dictate of common 
sense, so it is also an established doctrine of political law, that, 
" states neither lose any af their rights, nor are discharged from 
'• any of their obligations, hy a change in the form of their civil 
^'■governments* ■< 

The last objection of any consequence, at present recollected, 
turns upon the article of expense. If it were even true, that the 
adoption of the proposed government would occasion a consider- 
able increase of expense, it would be an objection that ought to 
have no weight against the plan. The great bulk of the citizens 
of America are with reason convinced, that union is the basis of 
their political happiness. Men of sense of all parties now, with 
few exceptions, agree that it carmot be preserved under the pres- 
ent system, nor without radical alterations; that new and exten- 
sive powers ought to be granted to the national head, and that 
these require a different organization of the federal government : 
a single body being an unsafe depository of such ample authori-. 
ties. In conceding all this, the question of expense is given up ; 
for it is impossible, with any degree of safety, to narrow the 
foundation upon which the system is to stand. The two branch- 
es of the legislature are, in the first instance, to consist of only 
sixty-five persons; the same number of which congress, under 
the existing confederation may be composed. It is true, that this 
number is intended to be increased ; but this is to keep pace with 
the progress of the population and resources of the country. It 
is evident that a less number would, even in the first instance, 
have been unsafe ; and that a continuance of the present number 
would, in a more advanced stage of population, be a very inade- 
quate representation of the people. 

Whence is the dreaded augmentation of expense to spring ? 
One source indicated, is the multiplication of offices under the 
new government. Let us examine this a little. 

It is evident that the principal departments of the administration 
under the present government, are the same which will be required 
under the new. 'I'here are now a secretary of war, a secretary for 
foreign affairs, a secretary for domestic affairs, a board of treasury 
consisting of three persons, a treasurer, assistants, clerks, &c. ; 
these offices are indispensable under any system, and will suffice 
under the new as well as the old. As to ambassadors and other 
ministers and agents in foreign countries, the proposed constitution 
can make no other difference, than to render their characters, 
where they reside, more respectable, and their services more useful. 
As to persons to be employed in the collection of the revenues, it 
is unquestionably true that these will form a very considerable addi- 

* Vide Rutherford's Institutes, vol. 2, book 11, chap, x, sect, xiv, and xv. 
Vide also Grotius, book 11, chap, ix, sect, viii, and ix. 



398 THE FEDERALIST. 

tion to the number of federal officers; but it will not follow, that this 
will occasion an increase of public expense. It will be in most 
cases nothing nriore than an exchange of state for national officers. 
In the collection of all duties, for instance, the persons employed 
will be wholly of the latter description. The states individually 
will stand in no need of any for this purpose. What difference 
can it make in point of expense, to pay officers of the customs 
appointed by the state or by the United States ? 

Where then are we to seek for those additional articles of ex- 
pense, which are to swell the account to the enormous size that has 
been represented ? The chief item which occurs to me, respects 
the support of the judges of the United States. I do not add the 
president, because there is now a president of congress, whose 
expenses may not be far, if any thing short of those which will be 
incurred on account of the president of the United States. The 
support of the judges will clearly be an extra expense, but to what 
extent will depend on the particular plan which may be adopted 
.in regard to this matter. But 'upon no reasonable plan can it 
amount to a sum which will be an object of material consequence. 

Let us now see what there is to counterbalance any extra expense 
that may attend the establishment of the proposed government. 
The first thing which presents itself is, that a great part of the 
business that now keeps congress sitting through the year, will he 
transacted by the president. Even the management of foreign 
negotiations will naturally devolve upon him, according to gen- 
eral principles concerted with the senate, and subject to their final 
concurrence. Hence it is evident, that a portion of the year 
will suffice for the session of both the senate and the house of 
representatives : we may suppose about a fourth for the latter, and 
a third or perhaps half, for the former. The extra business of 
treaties and appointments may give this extra occupation to the 
senate. From this circumstance we may infer, that until the 
house of representatives shall be increased greatly beyond its pres- 
ent number, there will be a considerable saving of expense from 
the difference between the constant session of the present, and the 
temporary session of the future congress. 

But there is another circumstance, of great importance in the 
view of economy. The business of the United States has hitherto 
occupied the state legislatures, as well as congress. The latter has 
made requisitions which the "former have had to provide for. It 
has thence happened, that the sessions of the state legislatures have 
been protracted greatly beyond what was necessary for the execu- 
tion of the mere local business. More than half their time has been 
frequently employed in matters which related to the United States. 
Now the members who compose the legislatures of the several states 
amount to two thousand and up^wards; which number has hitherto 
performed what under the new system will be done in the first in- 



THE FEDERALIST. 399 

stance by sixty-five persons, and probably at no future period by 
above a fourth or a fifth of that number. The congress under the 
proposed government will cjo all the business of the United States 
themselves, without the intervention of the state legislatures, who 
thenceforth will have only to attend to the affairs of their particu- 
lar states, and will not have to sit in any proportion as long as they 
have heretofore done. This difference, in the time of the sessions 
of the state legislatures, will be clear gain, and will alone form an 
article of saving, which may be regarded as an equivalent for any 
additional objects of expense that may be occasioned by the 
adoption of the new system. 

The result from these observations is, that the sources of addi- 
tional expense from the establishment of the proposed constitution, 
are much fewer than may have been imagined ; that they are 
counterbalanced by considerable objects of saving ; and that while 
it is questionable on which side the scale will preponderate, it is 
certain that a government less expensive would be incompetent to 
the purposes of the union. • PUBLIUS. 



BY ALEXANDER HAMILTON. 

CONCLUSION. 

According to the formal division of the subject of these papers, 
announced in my first number, there would appear still to remain 
for discussion, two points — " the analogy of the proposed govern- 
'•' ment to your own state constitution," and "the additional secu- 
" rity which its adoption will afford to republican government, to 
" liberty and to property." But these heads have been so fully 
anticipated, and so completely exhausted in the progress of the 
work, that it would now scarcely be possible to do any thing more 
than repeat, in a more dilated form, what has been already said ; 
which the advanced stage of the question, and the time already 
spent upon it, conspire to for'bid. 

It is remarkable, that the resemblance of the plan of the con- 
vention to the act v/hich organizes the government of this state 
holds, not less with regard to many of the supposed defects, than 
to the real excellences of the former. Among the pretended de- 
fects, are the reeligibility of the executive ; the want of a council ; 
the omission of a formal bill of rights ; the omission of a provision 
respecting the liberty of the press: these and several others, which 
have been noted in the course of our inquiries, are as much 
chargeable on the existing constitiflion of this state, as on ihe one 



400 THE FEDERALIST. 

proposed for the union : and a man mnst have slender pretensions 
to consistency, who can rail at the latter for imperfections, which 
he finds no difficulty in excusing in the former. Nor indeed can 
there be a better proof of the insincerity and affectation of some of 
the zealous adversaries of the plan of the convention, who profess 
to be devoted admirersof the government of this state, than the fury 
with which they have attacked that plan, for matters in regard to 
which our own constitution is equally, or perhaps more vulnerable. 
The additional securities to republican government, to liberty, 
and to property, to be derived from the adoption of the plan, con- 
sists chiefly in the restraints which the preservation of the union 
will impose upon local factions and insurrections, and upon the 
ambition of powerful individuals in single states, who might acquire 
credit and influence enough, from leaders and favorites, to become 
the despots of the people ; in the diminution of the opportunities 
to foreign intrigue, which the dissolution of the confederacy would 
invite and facilitate ; in the prevention of extensive military estab- 
lishments, which could not fail to grow out of wars between the 
states in a disunited situation ; in the express guaranty of a repub- 
lican form of government to each ; in the absolute and universal 
exclusion of titles of nobility ; and in the precautions against the* 
repetition of those practices on the part of the state governments, 
which have undermined the foundations of property and credit ; 
have planted mutual distrust in the breasts of all classes of citizens ; 
and have occasioned an almost universal prostration of morals. 

Thus have I, fellow-citizens, executed the task I had sssigned to 
myself; with what success, your conduct must determine. I trust 
at least you will admit that I have not failed in the assurance 1 
gave you respecting the spirit with which my endeavors should be 
conducted. I have addressed myself purely to your judgments, 
and have studiously avoided those asperities which are too apt to 
disgrace political disputants of all parties, and which have been not 
a little provoked by the language and conduct of the opponents of 
the constitution. The charge of a conspiracy against the liberties 
of the people, which has been indiscriminately brought against the 
advocates of the plan, has something in it too wanton and too ma- 
lignant, not to excite the indignation of every man who feels in his 
own bosom a refutation of the calumny. The perpetual changes 
which have been rung upon the wealthy, the well-born, and the 
great, are such as to inspire the disgust of all sensible men. And 
the unwarrantable concealments and misrepresentations which have 
been in various ways practiced to keep the truth from the public 
eye, are of a nature to demand the reprobation of all honest men. 
It is possible that these circumstances may have occasionally be- 
trayed me into intemperances of expression which 1 did not iri- 
tend : it is certain, that I have frequently felt a struggle between 
sensibility and moderation ; and ff the former has in some instances 



THE FEDERALIST. 401 

prevailed, it must be my excuse, that it has been neither often, 
wor much. 

Let us now pause, and ask ourselves, whether, in the course of 
these papers, (he proposed constitution has not been satisfactorily 
vindicated from the aspersions thrown upon it; and whether it 
lias not been shown to be worthy of the public approbation, and 
necessary to the public safety and prosperity. Every man is 
bound to answer these questions to himself, according to the best 
of his conscience and understanding, and to act agreeably to the 
genuine and sober dictates of his judgment. This is a duty from 
which nothing can give him a dispensation. It is one that he is 
called upon, nay, constrained by ail the obligations that form the 
bands of society, to discharge, sincerely and honestly. No partial 
motive, no particular interest, no pride of opinion, no temporary 
passion or prejudice, \ViU justify to himself, to his country, to his 
posterity, an improper election of the part he is to act. Let him 
beware of an obstinate adherence to party; let him reflect, that 
the object upon which he is to decide is not a particular interest 
of the community, but the very existence of the nation; and let 
him remember, that a majority of America has already given its 
sanction to the plan which he is to approve or reject. 

I shall not dissemble, that I feel an entire confidence in the ar- 
guments which recommend the proposed system to your adop- 
tion ; and that I am unable to discern any real force in those by 
which it has been assailed. I am persuaded, that it is the best 
which our political situation, habits, and opinions will admit, and 
superior to any the revolution has })roduced. 

ConcessiotJs on the part of the friends of the pian, that it has 
«ot a claim to absolute perfection, have afforded matter of no 
small triumph to its enemies. Why, say they, should we adopt 
an imperfect thing ? Why not amend it and make it perfect be- 
fore it is irrevocably established ? This may be plausible, but it 
is plausible only. In the first place I remark, that the extent of 
Ihase concessions has been greatly exaggerated. They have been 
stated as amounting to an admission, that the plan is radically de- 
fective : and that without m.aterial alterations, the riglits ana tho 
interests of the community camiot be safely confided to it. This, 
as far as I have understood the meaning of those who make the 
concessions, is an eiltire perversion of their sense. No advocate 
of (he measure can be found, who will not declare as his senti- 
ment, that the system., though it may not be perfect in every part, 
is, upon the whole, a good one ; is the best that the presetJt views 
and circumstances of the coinitry will permit: and is such an one 
as promises every species of security which a reasonable people, 
can desire. 

I answer in the next place, thai I should esteem it the extreme 
of imprudence to prolong the precarious state of our national af- 
5l# 



402 THE FEDERALIST. 

fairs, and to expose the union to the jeopardy of successive eX-' 
periments, in the chimerical nursiiit of a perfect plan. I never 
expect to see a perfect work irom imperfect man. The result of 
the deliberations of all collective bodies, must necessarily be a 
compound as well of the errors and prejudices^, as of the good 
sense and wisdom of the individuals of whom they are composed. 
The compacts which are to embrace thirteen distinct states, in a 
common bond of amity and union, must as necessarily be a com- 
promise of as many dissimilar interests and inclinations. How 
can perfection spring from such materials ? 

The reasons assigned in an excellent little pamphlet lately pub- 
lished in this city,* unanswerably show the utter improbability of 
assembling a new convention, under circumstances in any degree 
so favorable to a happy issue, as those in which the late conven- 
tion met, deliberated and concluded. I will not repeat the argu- 
ments there used, as I presume the production itself has had an 
extensive circulation. It is certainly well worth the perusal of 
every friend to his country. There is, however, one point of 
light in which the subject of amendment still remains to be con- 
sidered ; and in which it has not yel been exhibited. I cannot re- 
solve to conclude without first taking a survey of it in this aspect. 

It appears to me suscejitible of complete demonstration, that it 
will be far more easy to obtain subsequent than previous amend- 
ments to the constitution. The moment an alteration is made in 
the present plan, it becomes, to the purpose of adoption, a new 
one, and must undergo a new decision of each state. To its 
complete establishment throughout the union, it will therefore re- 
quire the concurrence of thirteen states. If, on the contrary, the 
constitution should once be ratified by all the states as it stands, 
alterations in it may at any time be effected by nine states. In 
this view alone, the chances are as thirteen to ninef in favor of 
subsequent amendments, rather than of the original adoption of 
an entire system. ' 

This is not all. Every constitution for the United States must 
inevitably consist of a great variety of particulars, in which thir- 
teen independent states are to be accommodated in their interests 
or opinions of interest. We may of course expect to see, in any 
body of men charged with its original formation, very different 
combinations of the parts upon different p^ints, Many of those 
who form a majority on one question, may become the minority 
on a second, and an association dissimilar to either may constitute 
the majority on a third. Hence the necessity of msonlding and 
arranging all the particulars which are to compose the whole, in 
such a manner as to satisfy all the parties to the compact ; and 

* Entitled "An Address to the People of the State of New York." 

t It may rather be said ten, for though two-thirds may set on foot the measure, 
three-fo\u:ths must ratify. 

# 



THE FEDERALIST. 403 

hence, also, an immense multiplication of difficnlties and casual- 
ties in obtaining the collective assent to a final act. The degree 
of that multiplication must evidently -be in a ratio to the number 
of particulars and the number of parties. 

But every amendment to the constitution, if once established, 
would be a single proposition, and might be brought forward sing- 
ly. There would then be, no necessity for management or com- 
promise, in relation to any other point; no giving, nor taking. 
The will of the requisite number would at once bring the matter 
to a decisive issue. And consequently, whenever nine, or rather 
ten states, were united in the desire of a particular amendment, 
that amendment must infallibly prevail. There can, therefore, be 
no comparison between the facility of effecting an amendment, and 
that of establishing in the first instance a complete constitution. 

In opposition to the probability of subsequent amendments^ it 
has been urged, that the persons delegated to the administration 
of the national government, will always be disinclined to yield up 
any portion of the authority of which they were once possessed. 
For my own part, I acknowledge a thorough conviction, that any 
amendments which may, upon mature consideration, be thought 
useful, will be applicable to the organization of the government, 
not to the mass of its powers ; and on this account alone, I think 
there is no weight in the observation just stated. I also think 
there is little force in it on another acdbunt. The intrinsic diffi- 
culty of governing thirteen states, independent of calculations 
upon an ordinary degree of public spirit and integrity, will, in my 
opinion, constantly impose on the national rulers the necessity of 
a spirit of accommodation to the reasonable expectations of their 
constituents. But there is yet a further consideration, which 
proves beyond the possibility of doubt, that the observation is fu- 
tile. It is this, that the national rulers, whenever nine states con- 
cur, will have no option upon the subject. By the fifth article of 
the plan, the congress will be obliged, "on the application of the 
" legislatures of two-thirds of the states, (which at present amount 
•"to nine,) to call a convention for proposing amendments, which 
" shall be valid to all intents and purposes, as part of the consti- 
"tution, when ratified by the legislatures of three-fourths of the 
"states, or by conventions in three-fourths thereof." The words 
of this article are peremptory. The congress ^^ shall call a con- 
vention." Nothing in this particular is left to discretion. Of con- 
sequence, all the declamation about the disinclination to a change, 
vanishes in air. Nor however difficult it may be supposed to 
unite two-thirds, or three-fourths of the state legislatures, in 
amendments which may atfect local interests, can there be any 
room to apprehend any such difficulty- in a union on points which 
are merely relative to the general liberty or security of the peo- 
ple. We mav safely rely on the disposition of the state legisla- 



404 THE FEDERALIST. 

tures to erect barriers against the encroachments of the national 
authority. 

If the foregoing argunfient be a faHacy, certain it is, that 1 am 
myself deceived by it; for it is, in my conception, one of those 
rare instances in which a political tnith can be brought to the 
test of matbematicaS demonstration. Those who see the matter 
in the same Hght, however zealous they may be for amendments, 
must agree in the propriety of a previous adoption, as the most 
direct road to their object. 

The zeal for attempts to amend, prior to the esJabiishment 
of the constitution, must abate in ev-ery man, who is ready to 
accede to the truth of the foJlovv'ing observations of a writer, 
equaUy solid and ingenious: " To balance a large state or soci- 
" ety, (says he,) whether monarchical or republican, on general 
" laws, is a work of so great difficulty, that no human genius, 
" however comprehensive, is able by the mere dint of reason and 
*' reflection, to effect it. The judgments of many must unite iu 
" the work ; experience must guide their labor : time most bring 
" it to perfection : and the feeling of inconveniences must cor- 
" rect the mistakes which they inevitaMy fall into, in their first 
" trials and experiments."* These judjpious reflections contaiu 
a lesson of moderation to all the sincere lovers of the union, 
and ought to put them upon their guard against hazarding an- 
archv, civil war, a perpetual alienation of the states from each 
other, and perhaps the military despotism 6f a victorious dema- 
gogue, in the pursuit of what they are not likely to obtain, but 
from TIME and experience. It may be in me a defect of polit- 
ical fortitude, but T acknowledge that I cannot entertain an equal 
tranquillity with those who affect to treat the dangers of a 
longer continuance in our present situation as imaginary. A 

NATION, without a NATIONAL. GOTERNMENT, is aU awful SpCCta- 

cle. The establishment of a constitution, in time of profound 
peace, by the volutitary consent of a whole people, is a prodigy, 
to the completion of which I look forward with trembling 
anxiety. In so arduous an enterprise, I can reconcile it to no 
rules of prudence to let go the hold we now have, upon seven 
out of the thirteen stajes ; and after having passed over so con- 
siderable a part of the ground, to recommence the course. 1 
dread the more the consequences of new attempts, because 1 
KNOW that POWERFUL INDIVIDUALS, in this and in other states, are 
enemies to a general national government in every possibfe 
shape. PUBLIUS. 

Hume's. EssaySj \(A^ 1, page 12S. — The rise of arts and sciences. 



IPPENDIX. 



THE LETTERS OF PACIFICUS. 



BY ALEXANDER HAMILTON. 



NUMBER I. 



As attempts are making, very dansierous to the peace, and, it is to be 
feared, not very friendly to the constitution of the United States, it be- 
comes the duty of those who wish well to both, to endeavor to prevent 
their success. 

The objections which have been raised against the proclamation of 
neutrality, lately issued by the president, have been urged in a spirit of 
acrimony and invective, which demonstrates that more was in view than 
merely a free discussion of an important public measure. They exhibit 
evident indications of a design to weaken the confidence of the people 
in the author of the measure, in order to remove or lessen a powerful 
obstacle to the success of an opposition to the government, which, how- 
ever it may change its form according to circumstances, seems still to be 
persisted in with unremitting industry. 

This reflection adds to the motives connected with the measure itself, 
to recommend endeavors, by proper explanations, to place it in a just 
light. Such explanations at least cannot but be satisfactory to those who 
may not themselves have leisure or opportunity for pursuing an investi- 
gation of the subject, and who may wish to perceive, that the policy of 
the government is not inconsistent with its obligations\>r its honor. 

The objections in question fall under four hea.ds : — 

1. That the proclamation was without authority. 

2. That il was contrary to our treaties with France. 

3. That it was contrary to the gratitude Wjhich is due from this to that 
country for the succors afforded to us in our own revolution. 

4. That it was out of time and unnecessary. 

In order to judge of the solidity of the first, of these objections, it is 
necessary to examine what is the nature and design of a proclamation of 
neutrality. 

It is to make known to the powers at war, and to the citizens of the 
country whose government does the act, that such country is in the con- 
dition of a nation at peace with the belligerent parties, and under no ob- 
ligations of treaty to become an associate in the war with either, and 
that this being its situation, its intention is to observe a correspondent 
conduct, by performing towards each the duties of neutrality; to warn 
all persons within the jurisdiction of that country, to abstain from acts 



406 LETTERS OF PACIFICUS. 

that shall contravene those duties, under the penalties which the laws of 
the land, of which the jus gentium is part, will inflict. 

This, and no more, is conceived to be the true import of a proclama- 
tion of neutrality. 

It does not imply, that the nation which makes the declaration, will 
forbear to perform to either of the warring powers any stipulations in 
treaties which can be executed, without becominjr a jaar/^ in the war. 
It therefore does not imply in our case, that the United States will not 
make those distinctions beJween the present belligerent powers which 
are stipulated in the 7th and 22d articles of our treaty with France ; be- 
cause they are not incompatible with the stcteof neutrality ; and will in 
no shape render the United States an associate or party in the war. 
This must be evident, when it is considered that even to furnish determi- 
nate succors of ships or troops, to a power at war, in consequence of 
antecedent treaties having no 'particular reference to the existing quarrel, 
is not inconsistent with neutrality ; a position equally well established by 
the doctrines of writers, and the practice of nations.* 

But no special aids, succors, or favors, having relation to war, not pos- 
itively and precisely stipulated by some treaty of the above description, 
can be afforded to either party, without a breach of neutrality. 

in stating that the proclamation of neutrality does not imply the non- 
performance of any stipulations of treaties, which are not of a nature to 
make the nation an associate in the war, it is conceded that an execution 
of the clause of guaranty, contained in the eleventh article of our treaty 
of alliance with France, would be contrary to the sense and spirit of the 
proclamation ; because it would engage us with our whcffe force, as an 
auxiliary in the war ; it would be much more than the case of a definite 
succor, previously ascertained. 

It follows, that the proclamation is virtually a manifestation of the 
sense of the government, that the United States are, under the circum- 
stances of the case, not bound to e.^ecute the clause of guaranty. 

If this be a just view of the force and import of the proclamation, it 
will remain to see, whether the president, in issuing it, acted within his 
proper sphere or stepped beyond the bounds of iiis constitutional au- 
thority and duty. 

It will not be 'disputed, that the management of the affairs of this 
country with foreign nations, is confided to the government of the United 
States. 

It can as little be disputed, that a proclamation of neutrality, when a 
nation is at liberty to decline or avoid a war in which other nations are 
engaged, and the means to do so, is a usual and a proper measure. Its 
main object is to prevent the natiojib being responsible for acts done by 
its citizens, without the prioity or connivance of the governmPMt, in con- 
travention of the principles of neutrality ; an object of the greatest 
moment to a country, whose true interest lies in the preservation of 
peace. 

The inquiry then is, what department of our government is the proper 
one to make a declaration of neutrality, when the engagements of the 
nation permit, and its interests require that it should be done .? 

A correct mind will discern at once, that it can belong neither to the 

* See Vattel, Book III, Ch. 6, Sec. 101. 



LETTERS OF PACIFICUS. 407 

legislative nor judicial department; of course it must belong to the eX" 
ecutive. 

The legislative department is not the organ of intercourse between 
the United States and foreign nations. It is charged neither with making 
nor interpreting treaties. It is therefore not naturally that member of 
the government, which is to pronounce the existmg condition of the na- 
tion with regard to foreign powers, or to admonish the citizens of their 
obligations and duties in consequence ; still less is it charged with en- 
forcing the observance of those obligations and duties. 

It is equally obvious, that the act in question is foreign to the judiciary 
department. The province of that department is to decide litigations in 
particular cases. It is indeed charged with the interpretation of treaties, 
but it exercises this function only where contending parties bring before 
it a specific controversy. It has no concern with pronouncing upon the 
external political relations of treaties between government and govern- 
ment. This position is too plain to need being insisted upon. 

It must then of necessity belong to the executive department to exer- 
cise the function in question, when a proper case for it occurs. 

It appears to be connected with that department in various capacities: 
as the organ of intercourse between the nation and foreign nations ; as 
the interpreter of the national treaties, in those cases in which the judi- 
ciary is not competent, that is, between government and government ; as 
the power, which is charged with the execution of the laws, of which 
treaties form a part : as that which is charged with the command and 
disposition of the public force. 

This view of the subject is so natural and obvious, so analogous to 
general theory and practice, that no doubt can be entertained of its just- 
ness, unless to be deduced from particular provisions of the constitution 
of the United States. 

Let us see, then, if cause for such doubt is to be found there. 

The second article of the constitution of the United States, section 
first, establishes this general proposition, that the "■ executive power 
shall be vested in a president of the United States of America."' 

The same article, in a succeeding section, proceeds to delineate par- 
ticular cases of executive power. It declares among other things, that 
the president shall be commander-in-chief of the army and navy of the 
United States, and of the militia of the several states, when called into 
t-he actual service of the United States ; that he shall have power, by and 
with the advice and consent of the senate, to make treaties ; that it shall 
be his duty to receive ambassadors ond other public ministers, and to 
take care that the laws be faithfully executed. 

It would not consist with the rules of sound construction to consider 
this enumeration of particular authorities as derogating from the more 
comprehensive grant in the general clause, further than as it may be 
coupled with express restrictions of limitations ; as in regard to the co- 
operation of the senate in the appointment of officers, and the making 
of treaties : which are plainly qualifications of the general executive 
powers of appointing oflicers and making treaties. The difficulty of a 
complete enumeration of all the cases of executive authority, would 
naturally dictate the use of general terms, and would render it improba- 
ble, that a specification of certain particulars was designed as a substi- 
tute for those terms, when antecendeiitly used. The different mode of 



408 LETTERS OF PACIFICUS. 

expression employed in tlie constitution, in regard to the two powers, the 
legislative and the executive, serves to confirm this inference. In the 
article which gives the legis"lative powers of the government, the expres- 
sions are, " All legislative powers herein granted shall be vested in a 
Congress of the United States." In that which grants the executive 
power the expressions are, " The executive poioer shall be vested in a 
president of the United States." 

The enumeration ought therefore to be considered, as intended mere* 
ly to specify the principal articles implied in the definition of executive 
power ; leaving the rest ,to flow from the general grant of that power, 
interpreted in conformity with other parts of the constitution, and with 
the principles of free governm.ent. 

The general doctrine of our constitution then is, that the executive pow- 
er of the nation is vested in the president ; subject only to the exceptions 
and qualifica.tio7is, which are expressed in the instrument. 

Two of these have been already noticed ; the participation of tho 
senate in the appointment of officers, and in the making of treaties. A 
third remains to be mentioned ; the right of the legislature "to declare 
war, and grant letters of marque and reprisal." 

With these exceptions, the executive power of the United States is 
completely lodged in the president. Tliis mode of construing the con- 
stitution has indeed been recognizi^d hy congress in formal acts, upon 
full consideration and debate ; of which the power of removal from office 
is an important instance. It will follow, that if a proclamation of neu- 
trality is merely an executive act, as, it is believed, has been shown, the 
step which has been taken by the president is liable to no just exception 
on the score of authority. 

It may be said that this inference would be just, if the power of de- 
claring war had not been vested in the legislature ; but that this power 
naturally includes the right of judging, whether the nation is or is not 
under obligations to make war. 

The answer is, that however true this position may be, it will not fol- 
low, that the executive is in ^ny case excluded from a similar right of 
judgment, in the execution of its own functions. 

If on the one hand, the legislature have a right to declare war, it is, 
on the other, the duty of the executive to preserve j)eace, till the declar- 
ation is made ; and in fulfilling this duty, it must necessarily possess a 
right of judging what is the nature of the obligations which the treaties 
of the country impose on the government : and when, it has concluded 
that there is nothing in them inconsistent with neutrality, it becomes, both 
its province and its duty to enforce the laws incident to that state of the 
nation. The executive is charged with the execution of all laws, the 
law of nations, as well as the municipal law, by which the former are 
recognized and adopted. It is consequently bound, by executing faith- 
fully the laws of neutrality when the country is in a neutral position, to 
avoid giving cause of war to foreign powers. 

This is the 'direct end of the prociamalion of neutrality. It declares 
to the United States their situation with regard to the contending parties, 
and makes known to the community, that the laws incident to that state 
will be enforced. In doing this, it conforms to an established usage of 
nations, the operation of which, as before remarked, is to obviate a 



LETTERS OF PACIFICUS. 409 

responsibility on the part of the whole society, for secret and unknown 
violations bf the rights of any of the warring powers by its citizens. 

Those who object to the proclamation wilj readily admit, that it is the 
right and duty of the executive to interpret those articles of our treaties 
which gave to France particular privileges, in order to the enforcement 
of them : but the necessary consequence of this is, that the executive 
must judge what are the proper limits; what rights are given to other 
nations, by our contracts with them ; what rights the law of nature and 
nations gives, and our treaties permit, in respect to those countries with 
which we have none ; in fine, what are the reciprocal rights and obliga- 
tions of the United States, and of all and each of the powers at war. 

The right of the executive to receive ambassadors and other public 
ministers may serve to illustrate the relative duties of the executive and 
legislative departments. This right includes that of judging, in the case 
of a revolution of government in a foreign country, whether the new 
rulers are competent organs of the national will, and ought to be recog- 
nized, or not; which, where a treaty antecedently exists between the 
United States and such nation, involves the power of continuing or sus- 
pending its operation. For until the new government is acknowledged, 
the treaties between the nations, so far at least as regards public rights, 
are of course suspended. 

This power of determining virtually upon the operation of national 
treaties, as a consequence of the power to receive public ministers, is an 
important instance of the right of the executive, to decide upon the obli- 
gations of the country with regard to foreign nations. To apply it to the 
case of France, if there had been a treaty of alliance, offensive and de- 
fensive, between the United S^tates and that country, the unqualified ac- 
knowledgment of the new government would have put the United States 
in a condition to become an associate in the war with France, and would 
have laid the legislature under an obligation, if required, and there was 
otherwise no valid ^excuse, of exercising its power of declaring war. 

This serves as an example of the right of the executive, in certain 
cases, to determine the condition of the nation, though it may, in its con- 
sequences, afTect the exercise of the power of the legislature to declare 
war. INevertheless, the executive cannot thereby control the exercise of 
that power. The legislature is still free to perform its duties, according 
to its own sense of them ; though, the executive, in the exercise of its 
constitutional powers may establish an antecedent state of things, which 
ought to weigh in the legislative decisions. 

The division of the executive power in the constitution, creates a con- 
current authority in the cases to which it relates. 

Hence, in the instance stated, treaties can only be made by the presi- 
dent and senate jointly ; but their activity may be continued or suspend- 
ed by the president alone. 

No objection has been made to the president's having acknowledged 
the republic of France, by the reception of its minister, without having, 
consulted the senate ; though that body is connected with him in the 
making of treaties, and though the consequence of his ac^ of reception 
is, to give operation to those heretofore madei with that country. But he 
is censured for having declared the United States to be in a state of 
peace and neutrality, with regard to the powers at war; because the 
right of changing that state, and declaring war, belongs to the legislature. 

52 ' 



410 ' LETTERS OP PACIFICUS. 

It deserves tolje remarked, that as the participation of the senate in 
the making of treaties, and the power of the legislature to declare war, 
are exceptions out of the general " executive power" vested in the pres- 
ident ; they are to be construed strictly, and ought to be extended no 
further than is essential to their execution. 

While, therefore, the legislature alone can declare war, can alone ac- 
tually transfer the nation from a state ef peace to a state of hostility, it 
belongs to the " executive power" to do whatever else the law of na- 
tions, co-operating with the treaties of the country, enjoin in the inter- 
course of the United States with foreign powers. 

In this distribution of authority, the wisdom of our constitution is man- 
ifested. It is the province and duty of the executive to preserve to the 
nation the blessings of peace. The legislature alone can interrupt them 
by placing the nation in a stale of war. 

But though it has been thought advisable to vindicate the authority oi 
the executive on this broad and comprehensive ground, it was not abso- 
lutely necessary to do so. That clause of the constitution which makes 
it his duty to "take care that the laws be faithfully executed," might 
alone have been relied upon, and this simple process of argument pur- 
sued. 

The president is the constitutional executor of the laws. Our trea- 
ties, and the laws of nations, form a part of the law of the land. He, 
who is to execute the laws, must first judge for himself of their meaning. 
In order to the observance of that conduct which the laws of nations, 
combined with our treaties, prescribed to this country, in reference to 
the present war in Europe, it was necessary for the president to judge 
for himself, whether there was any thing m our treaties, incompatible 
with an adherence to neutrality. Having decided that there was not, he 
had a right, and if in hia opinion the interest of the nation required it, it 
was his duty as executor of the laws, to proclaim the neutrality of the 
nation, to exhort all persona to observe it, and to warn them of the pen- 
alties which would attend its non-observance. 

The proclamation has been represented as enacting some new law» 
This is a view of it entirely erroneous. It only proclaims a fad, with 
regard to the existing state of the nation : informs the citizens of what 
the laws previously established require of them in that state, and notifies 
them that these laws will be put in execution against the infractoraof them. 



NUMBER II. 



The second and principal objection to the proclamation, namely, that 
it is inconsistent with the treaties between the United States ftnd France, 
will now be examined. 

It has been already shown, that it does not militate againS't the per- 
formance of any of the stipulations in those treaties, which v/ould not 
make us an associate or party in the war, and especially that it does not 
interfere with the privileges secured to France by the seventeenth and 
twenty-second articles of the treaty of commerce ; which, except the 
clause of guaranty, constitute the most material discriminations to be 
found in our treaties in favor of that country. 



LETTERS OF PACIFICUS. 411 

Official' aocuments have likewise appeared in the public papers, which 
serve as a comment upon the sense of the proclamation in this partic- 
ular, proving that it was not deemed by the executive incompatible with 
the performance of the stipulations in those articles, and that in practice 
they are intended to be observed. 

It has however been admitted, that the declaration of neutrality ex- 
^ eludes the idea of an execution of the clause of guaranty. 

It becomes necessary therefore to examine, whether the United States- 
would have a valid justification for not complying with it, in case of their 
being called upon for that purpose by France. 

Without knowing how far the reasons which have occurred to me may 
have influenced the president, there appear to me to exist very good and 
substantial grounds for a refusal. 

The alliance between the United States and France, is of the defensive 
kind. In the caption, it is denominated a *' treaty of alliance eventual 
and defensive." In the body (article the second) it is called a defen- 
sive alliance. The words of that article are as follows : " The essential 
*' and direct end of the present defensive alliance is to maintain effectu- 
" ally the liberty, sovereignty and independence, absolute and unlimited, 
*' of the United States, as well in matters of government, as of com- 
*' merce." 

The leading character then of our alliance with France being defen- 
sive, it will follow, that the meaning, obligation, and force of every stip- 
ulation in the treaty, must be tested by the principles of such an alliance; 
unless in any instance terms have been used wh'ch clearly and unequiv- 
ocally denoted a different intent. 

The principal question consequently is : what is the nature and effect 
of a defensive alliance ? When does the casus fcEcleris take place, in 
relation to it .'' 

Reason, the concurring opinion of writers, and the practice of na- 
tions, will all answer : '' When either of the allies is attacked^ when war 
'■'■ ']s made upon him, not when he makes war upon another f in other" 
words, the stipulated assistance is to be given "when our ally is engaged 
*' in a defensive, not when he is engaged in an offensive war." This ob^ ■ 
ligation to assist only in a defensive war, constitutes the essential differ- ■ 
ence between an alliance which is merely defensive, and one which is ■ 
both offensive and defensive. In the latter case, there is an obligation to 
co-operate as well when the war on the part of our ally, is of the latter, 
as when it is of the former description. To affirm, iherefoii'e, that the 
United States ai'e bound to assist France in the war in which she is at 
present engaged, will be to convert our treaty with her into an alliance 
offensive and defensive, cont*'ary to the express and reiterated declara- 
tions of the instrument itself. 

This assertion implies, that the war in question is an offensive war on 
the part of France. 

And so it undoubtedly is, with regard to all the powers with whom she 
was at war, at the time of issuing the proclamation. 

No position is better established, than that the nation which first de- 
clares, or actually begins a war, whatever may have been the causes 
leading to it, is that which makes an offensive war. Nor is there any 
doubt, that France first declared and begun the war, against Austria, 
Prussia, Savoy, Holland, England and Spain. 



412 LETTERS OF PACIFICUS. 

Upon this point, there is apt to be some incorrectness of ideas. Those 
who have not examined subjects of such a nature, are led to imagine that 
the party which commits the first injury, or gives the first provocation, is 
on the ofTensive side, though hostilities are actually begun by the other 
party. 

But the cause or the occasion of the war, and the war itself, are things 
entirely distinct. It is the commencement of the war itself which decides 
the question, whether it be offensive or defensive. All writers on the 
laws of nations agree in this doctrine ; but it is most accurately laid down 
in the following extracts from Burlemaqui.* 

" Neither are we to believe (says he) that he who first injures another 
'• begins by that an offensive war and that the other who demands the 
" satisfaction for the injury received, is always on the defensive. There 
" are a great many unjust acts, which may kindle a war, and which how- 
" ever, are not the war itself; as the ill-treatment of a prince's ambassa- 
" dors, the plundering of his subjects," &c. 

If, therefore, we take up arms to revenge such an unjust act, we com- 
mence an offensive but a just war ; and the prince who has done the in- 
jury, and will not give satisfaction, makes a defensive, but an unjust war. 

We must therefore affirm, in general, that the first who takes up arms, 
whether justly or unjustly, commences an offensive war ; and he who 
opposes him, whether with or without reason, begins a defensive war. 

France then being on the offensive in the present war, and our alli- 
ance with her being defensive only, it follows, ihat the casus fcederis, or 
condition of our guaranty, cannot take place ; and that the United States 
are free to refuse a performance of that guaranty, if demanded. 

Those who are disposed to justify indiscriminately every thing in the 
conduct of France, may reply, that though the war, in point of form, 
may be offensive on her part, yet in point of principle, it is defensive ; 
was in each instance a mere anticipation of attacks meditated against her, 
and was justified by previous aggressions of the o|)posite parties. 

It is believed that it would be a suflicient answer to this observation to 
say, that in determining the legal and positive obligations of the United 
States, the only point of inquiry is, whether the war was in fact begun 
by France, or by her enemies ; that all beyond this is too vague, too liable 
to dispute, too much matter of opinion to be a proper criterion of nation- 
al conduct ; that when a war bnjaks out between two nations, all others, 
in regard to the positive rights of the parties, and their positive duties 
towards them, are bound to consider it as equally just on both sides; 
that consequently in a defensive alliance, when war is made upon one 
of the allies, it is the duty of the other to fulfill the conditions stipulated 
on its part, without inquiry, whether the war is rightfully begun or not; 
as on the other hand, when war is commenced by one of the allies, the 
other is exempted from the obligation to assist, however just the com- 
mencement of it may have been. 

This doctrine is founded upon the utility of clear and certain rules for 
determining the reciprocal duties of nations, in order that as little as pos- 
sible may be left to opinion, and to the subterfuges of an over-refining 
or unfaithful casuistry. 

Some writers, indeed, of high authority affirm, that it is a tacit condi- 
tion of every alliance, that one ally is not bound to assist the other in a 

* Vol. II, Book IV, Chap, in. Sec. 4, 5. 



LETTERS OF PACIFICUS. 413 

war manifestly unjust. But this is questioned by other respectable author- 
ities on the ground which has been stated. And though the manifest in- 
justice of the war has been affirmed by some, to be a good cause for not 
executing the formal obligations of a treaty, I have nowhere seen it 
maintained, that the abstract justice of a war will of itself oblige a na- 
tion to do what its formal obligations do not enjoin : if this, however, 
were not the true doctrine, an impartial examination would prove, that 
with respect to some of the powers, France is not blameless in the cir- 
cumstances which preceded and led to the war; that if she received, 
she also gave causes of offence, and that the justice of the war on her 
side, is in those cases not a little problematical. 

There are prudential reasons, which dissuade from going largely into 
this examination, unless it shall be rendered necessary by the future turn 
of the discussion. 

It will be sufficient here to notice cursorily the following facts : — 

France committed an aggression upon Holland, in declaring the navi- 
gation, of the Scheldt free, and acting upon that declaration ; contrary to 
treaties in which she had explicitly acknowledged, and even guarantied, 
the exclusive right of Holland to the use of that river ; and contrary also 
to the doctrines of the best writers, and the established usages of nations 
in such cases. 

She gave a general and very serious cause of alarm and umbrage by 
the decree of the 19th of November, 1792, whereby the convention, in the 
name of the French nation, declare, that they wilt grant fraternity and 
assistance to every people who wish to recover their liberty ; and charge 
the executive power to send the necessary orders to the generals to give 
assistance to such people, and to defend those citizens who have been, or 
who may be vexed for the cause of liberty ; which decree was ordered 
to be printed in all languages. 

This very extraordinary decree amounted exactly to what France her- 
self had most complained of; an interference by one nation in the inter- 
nal government of another. 

When a nation has actually come to a resolution to throw off a yoke, 
under which it may have groaned, and to assert its liberties, it is justi- 
fiable and meritorious in another, to afford assistance to the one which 
has been oppressed, and is in the act of liberating itself; but it is not 
warrantable for any nation beforehand, to hold out a general invitation to 
insurrection and revolution, by promising to assist every people who may 
wish to recover their liberty, and to defend those citizens of every coun- 
try, who have been or who may be vexed for the cause of liberty ; still 
less to commit to the generals of its armies the discretionary power of 
judging, when the citizens of a foreign country have been vexed for the 
cause of liberty by their own government. 

For Vattel justly observes, as a consequence of the liberty and inde- 
pendence of nations, " that it does not belong to any foreign power, to 
" take cognizance of the administration of a sovereign of another coun- 
" try, to set himself up as a judge of his conduct, or to oblige him to 
" alter it." 

It had a natural tendency to disturb the tranquillity of nations, and to 
excite everywhere fermentation and revolt : it therefore justifies neutral 
powers, who were in a situation to be affected by it, in taking measures . 
to repress the spirit by which it had been dictated. / 



414 LETTERS OF PACIFICUS. 

But the principle of that decree received a more particular application 
to Great Britain, by some subsequent circumstances. 

Among the proofs of this are two answers, which were given by the 
president of the national convention, at a public sitting on the 28th of 
November, to two different addresses ; one presented by a deputation 
from " the society for constitutional information in London," the other 
by a deputation of English and Irish citizens at Paris. 

The following are extracts from these answers : — 

" The shades of Penri, of Hambden, and of Sidney, hover over your 
" heads ; and the moment, without doubt, approaches, in which the French 
" will bring congratulations to the national convention of Great Britain." 

" Nature and principles draw towards us England, Scotland, and 
" Ireland. Let the cries of friendship resound through the two eepttb- 
" Lies." — " Principles are waging war against tyranny, which will fall 
" under the blows of philosophy. Royalty in Europe is either de- 
" stroyed or on the point of perishing on the ruins of feudality : and the 
" declaration of rights placed by the side of thrones is a devouring fire 
" which will consume them — Worthy Republicans." &c. 

Declarations of this sort, cannot but be viewed as a direct application 
of the principles of the decree to Great Britain ; and as an open patron- 
age of a revolution in that country; a conduct which proceeding from 
the head of the body that governed France, in the pi-esence and on be- 
half of that body, was unquestionably an offence and injury to the nation 
,to which it related. 

The decree of the 15th of November, is a further cause of offence to 
all the governments of Europe. By that decree, " the French nation de- 
" clares, that it will treat as enemies the people, who, refusing or renounc- 
" ing liberty and equality, are desirous of preserving their prince and 
*' privileged casts, or of entering into an accommodation with them," &c. 
This decree was little short of a declaration of war against all nations 
having princes and privileged classes. 

The formal and definitive annexation to France of the territories over 
which her arms had temporarily prevailed, is another violation of just and 
moderate principles, into which the convention was betrayed by an in- 
temperate zeal, if not by a culpable ambition ; and of a hature to justify 
the jealousy and ill-will of every neighboring state. 

The laws of nations give to a power at war nothing more than a usu- 
fructuary or possessory right to the territories which it acquires ; sus- 
pending the absolute property and dominion, till a treaty of peace, or 
something equivalent, shall have ceded or relinquished the conquered 
territory to the conqueror. This rule is one of primary importance to 
the tranquillity and security of nations — facilitating an adjustment of 
their quarrels, and the preservation of ancient limits. 

But France, by incorporating with herself in several instances the ter- 
ritories she had acquired, violated that rule, and multiplied infinitely the 
obstacles to peace and accommodation. The doctrine that a nation can- 
not consent to its own dismemberment, but in a case of extreme necessi- 
ty, immediately attached itself to all the conquered territories; while the 
progressive augmentation of the dominions of the most powerful empire 
in Europe, on a principle not of temporary possession, but of perma- 
nent acquisition, threatened the independence of all other countries, and 
gave to neighboring neutral powers the justest cause of discontent and 



LETTERS OF PACIFICUS. 415 

apprehension. It is a principle well agreed, and founded on substantial 
reasons, that whenever a particular state adopts maxims of conduct con- 
trary to those generally established among nations, calculated to interrupt 
their tranquillity and to expose their safety, they may justifiably make 
common cause to resist and control the state which manifests a disposi- 
tion so suspicious and exceptionable. 

Whatever partiality may be entertained for the gt^neral object of the 
French Revolution, it is impossible for any well-informed or sober-minded 
man, not to condemn the proceedings which have been stated as repug- 
nant to the rights of nations, to the true principles of liberty, to the free- 
dom of opinion of mankind ; or not to acknowledge as a consequence of 
this, that the justice of the war on the part of France, with regard to 
some of the powers with which she is engaged, is from those causes 
questionable enough to free the United States from all embarrassment on 
that score, if indeed it be at all incumbent upon them to go into the inquiry. 

The policy of a defensive alliance is so essentially distinct from that 
of an offensive one, that it is every way important not to confound their 
effects. The first kind has in view the prudent object of mutual defence, 
when either of the allies is involuntarily forced into a war by the attack 
of some third power. The latter sabjects the peace of each ally to the 
will of the other, and obliges each to partake in the other's wars of policy 
and interest, as. well as in those of safety and defence. To preserve their 
boundaries distinct, it is necessary that each kind should be governed by 
plain and obvious rules. 

This would not be the case, if instead of taking as a guide the simple 
fact of who began the war, it was necessary to travel into metaphysical 
niceties about the justice or injustice of the causes which led to it : — 

Inasmuch also as the not furnishing a stipulated succor, when it is due, 
is itself a cause of war, it is very requisite that there should be some pal- 
pable criterion for ascertaining, when it is due. Tliis criterion, as be- 
fore observed, in a defensive alliance is the commencement or not, of 
the war by our ally, as a mere matter of fact. 

Other topics, serving to illustrate the position that the United States are 
not bound to execute the clause of guaranty, are reserved for another paper. 



NUMBER III. 



France, at the time of issuing the proclamation, was engaged in war 
with a considerable part of Europe, and likely to be embroiled with al- 
most all the rest, without a single ally in that quarter of the globe. 

In such a situation, it is evident, that however she may be able to de- 
fend herself at home, of which her factions alid internal agitations fur- 
nish the only serious doubt, she cannot make external efforts in any de- 
gree proportioned to those which can be made against her. 

This state of things alone discharges the United States from an obliga- 
tion to embark in her quarrel. 

It is known, that we are wholly destitute of naval force. France, 
with all the great maritime powers united against her, is unable to sup- 



416 LETTERS OF PACIFICUS. 

ply this deficiency. She cannot afford us that species of co-operation 
which is necessary to render our efforts useful to her, and to prevent our 
experiencing the destruction of our trade, and the most calamitous in- 
conveniencies in other respects. 

Our guaranty does not look to France herself. It does not relate to 
her immediate defence, but to the defence and preservation of her Ameri- 
can colonies ; objects of which she might be deprived, and yet remain 
a great, a powerful, and a happy nation. ' 

In the actual situation of this country, and in relation to a matter of 
only secondary importance to France, it may fairly be maintained, that 
an ability in her to supply, in a competent degree, our deficiency of 
naval force, is a conditioH of our obligation to perform the guaranty on 
our part. 

Had the United States a powerful marine, or could they command one 
in time, this reasoning would not be solid ; but circumstanced as they are, 
it is presumed to be well founded. 

There would be no proportion between the mischiefs and perils to 
which the United States would expose themselves, by embarking in the 
war, and the benefit which the nature of their stipulation aims at secur- 
ing to France, or that which it would be in their power actually to render 
her by becoming a party. 

This disproportion would be a valid reason for not executing the guar- 
anty. All contracts are to receive a reasonable construction. Self-pre- 
servation is the first duty of a nation ; and though in the performance of 
stipulations relating to war, good faith requires that its ordinary hazards 
should be fairly met, b.-cause they are directly contemplated by such stip- 
ulations, yet it does not require that extraordinary and extreme hazards 
should be run ; especially where the object to be gained or secured is 
only a partial or particular interest of the ally, for whom they are to be 
encountered. 

As in the present instance, good faith does not require that the United 
States should put in jeopardy their essential interests, perhaps their very 
existence, in one of the most unequal contests in which a nation could 
be engaged, to secure to France — what ? Her West India islands and 
other less important possessions in America. For it is always to be re- 
membered, that the stipulations of the United States do, in no event, 
reach beyond this point. If they were, upon the strength of their guar- 
anty, to engage in the war, ayd could make any arrangement with the 
belligerent powers, for securing to France those islands and those pos- 
sessions, they would be at perfect liberty instantly to withdraw. They 
would not be bound to prosecute the war one moment longer. 

They are under no obligation in any event, as far as the faith of treaties 
is concerned, to assist France in defence of her liberty ; a topic on which 
so much has been said, so very little to the purpose, as it regards the 
present question. 

The contest in which the United States would plunge themselves, were 
they to take part with France, would possibly be still more unequal than 
that in which France herself is engaged. With the possessions of Great 
Britain and Spain on both flanks, the numerous Indian tribes, under the 
influence and direction of those powers, along our whole interior frontier, 
with a long extended seacoast, with no maritime force of our own, and 
with the maritime force of all Europe against us, with no fortifications 



LETTERS OF PACIFICUS. 417 

whatever, and with a population not exceeding four millions : it is im- 
possible to imagine a more unequal contest, than that in which we should 
be involved in the case supposed. From such a contest we are dfssuad- 
ed by the most cogent motives of self-preservation, no less thar? of in- 
terest. 

We may learn fixfrn Vattel, one of the best writers on the laws of na- 
tions, that " if a state which has promised succors, finds itself unable to 
*' furnish them, its very inability is its exemption 5 and if the furnishing 
" the succors would expose it to an evident danger, this also is a lawful 
*' dispensation. The case would render the treaty pernicious to the state, 
*' and therefore not obligatory. But this applies to an imminent danger 
" threatening the safety of the state : the case of such a danger is tacitly 
" and necessarily reserved in every treaty."* 

If too, as no sensible and candid man will deny, the extent of the 
present combination against France, is in a degree to be ascribed to im- 
prudences on her part^ the exemption to the United States is still more 
manifest and complete. No couRtry is bound to partake in hazards of 
the most critical kind, which may have been produced or promoted by 
the indiscretion and intemperance of another. This is an obvious dic- 
tate of reason, with which the common sense and common practice of 
mankind coincide. 

To the foregoing considerations, it may, perhaps, be added with no 
small degree of force, that military stipulations in national treaties, con- 
template only the ordinary case of foreign war, and are irrelative to the 
contests which grow out of revolutions of government ; unless where 
they have express reference to a revolution begun, or where there is a 
guaranty of the existing constitution of a nation, or where there is a per- 
sonal alliance for the defence of a prince and his family.t 

The revolution in France is tiie primitive source of the war in which 
she is engaged. The restoration of the monarchy is the avowed object 
of some of her enemies, and the implied one of all. That question, 
then, is essentially involved in the principle of the war ;. a question cer- 
tainly never in the contemplation of the government with which our 
treaty was made, and it ma}, thence be fairly inferred, never intended to 
be embraced by it. 

The inference is, that the United States fulfilled the utmost that could 
be claimed by the nation of France, when they so far respected its de- 
cision as to recognise the newly constituted authorities ; giving operation 
to the treaty of alliance for future occasions, but considering the present 
war as a tacit exception. Perhaps, loo, this exception is, in other re- 
spects, due to the circumstances under which the engagements between 
the two countries were contracted. It is impossible, prejudice apart, not 
to perceive a delicate embarrassment between the theory and fact of our 
political relations to France. 

On these grounds, also, as well as that of the present war being offen- 
sive en the side of France, the United States have valid and honorable 
pleas to offer against the execution of the guaranty, if it should be claim- 
ed by France. And the president was in every view fully ju&tified in 
pronouncing, that the duty and interest of the United States dictated a 
neutrality m the war, 

* See Book III, Chap. VI, Sec. S>2. 

t PuiFeaidorf, Book VIII, Chap- IX, Sec. 9, 

53 



418 LETTERS OF PACIFICUS. 



NUMBER IV. 



A THIRD objection to the proclarrmtion is, that it is inconsistent with the 
gratitude due to France, for the services rendered to us in our revolution. 

Those who make this objection disavow, at the same time, all inten- 
tion to maintain the position, that the United States ought to take part in 
the war. They profess to be friends to our remaining at peace. What 
then do they mean by the objection ? 

If it be no breach of gratitude to refrain from joining France in the 
war, how can it be a breach of gratitude to declare, that such is our dis- 
position and intention ? 

The two positions are at variance w^ith each other ; and the true infer- 
ence is, either that those who make the objection really wish to engage 
this country in the war, or that they seek a pretext for censuring the con- 
duct of the chief magistrate, for some purpose very different from the 
public good. 

They endeavor in vain to elude this inference by saying, that the pro- 
clamation places France upon an equal footing with her enemies ; while 
our treaties require distinctions in her favor, and our relative situation 
would dictate kind offices to lier, which ought not to be granted to her 
adversaries. 

They are not ignorant, that the proclamation is reconcilable with both 
those objects, as far as they have any foundation in truth or propriety. 

It has been shown, that the promise of " a friendly and impartial con- 
•' duct" toward all the belligerent powers, is not incompatible with the 
performance of any stipulations in our treaties, which would not include 
our becoming an associate in the war; and it has been observed, that the 
conduct of the executive, in regard to the seventeenth and twenty-second 
articles of the treaty of commerce, is an unequivocal comment upon the 
terras. They were, indeed, naturally to be understood with the excep- 
tion of those matters of positive compact, which would not amount to 
taking part in the war ; for a nation then observes a friendly and impar- 
tial conduct towards tv/o contending powers^when it only performs to 
one of them whfit it is obliged to do by stipulations in antecedent treaties, 
which do not constitute a participation in the war. 

Neither do those expressions imply, that the United States will not ex- 
ercise their discretion in doing kind offices to some of the parties, with- 
out extending them to the others, so long as they have no relation to war : 
for kind offices of that description, may consistently with neutrality, be 
shown to one party and refused to another. 

If the objectors mean, that the United States ought to favor France, in 
things relating to war, and where they are not bound to do it by treaty ; 
they must in this case also abandon their pretension of being friends to 
peace. For such a conduct would be a violation of neutrality, which 
could not fail to produce war. 

It follows then, that the proclamation is reconcilable with all that those 
who censure it contend for ; taking them upon their own ground, that 
nothing is to be done incompatible with the preservation of peace. 

But though this would be a sufficient answer to the objection under 
consideration ; yet it may not be without use, to indulge some reflections 
on this very favorite topic of gratitude to France ; since it is at this 
shrine that we are continually invited to sacrifice the true interests of the 



LETTERS OF PACIFICUS. 419 

country ; as if " all for love, and the world well lost," were a fundamen- 
tal maxim in politics. 

Faith and justice, between nations, are virtues of a nature the most 
necessary and sacred. They cannot be too strongly inculcated, nor too 
highly respected. Their obligations are absolute, their utility unques- 
tionable ; they relate to objects Vv^hich, with probity and sincerity, gen- 
erally admit of being brought within clear and intelligible rules. 

But the same cannot be said of gratitude. It is not very often, that 
between nations, it can be pronounced with certainty, that there exists a 
solid foundation for the sentiment ; and how far it can justifiably be per- 
mitted to operate, is always a question of still greater difficulty. 

The basis of gratitude is a benefit received or intended, which there 
was no right to claim, originating in a regard to the interest or advan- 
tage of the party on whom the benefit is, or is meant to be, conferred, 
if a service is rendered from views relative to the immediate interest of 
the party who performs it, and is productive of reciprocal advantages, 
there seems scarcely in such a case, to be an adequate basis for a senti- 
ment like that of gratitude. The effect at least would be wholly dispro- 
portioned to the cause, if such a service ought to beget more than a dis- 
position to render in turn a corresponding good office, founded on mutual 
interest and reciprocal advantage. But gratitude would require much 
more than this ; it would exact to a certain extent even a sacrifice of the 
interest of the party obliged to the service or benefit of the one by whom 
the obligation had been conferred. 

Between individuals, occasion is not unfrequently given for the exer- 
cise of gratitude. Instances of conferring benefits from kind and benev- 
olent dispositions or feelings towards the person benefited, without any 
other interest on the part of the person who renders the service, than 
the pleasure of doing a good action, occur every day among individuals. 

Butam.ong nations they perhaps never occur. It may be affirmed as a 
general principle, that the predominant motive of good offices from one 
nation to another, is the interest or advantage of the nation which per- 
forms them. 

Indeed, the rule of morality in this respect is not precisely the same 
between nations, as between individuals. The duty of making its own 
welfare the guide of its actions, is much stronger upon the former, than 
upon the latter ; in proportion to the greater magnitude and importance 
of national, compared with individual happiness, and to the greater per- 
manency of the effects of national, than of individual conduct. Exist- 
ing millions, and for the most part future generations, are concerned in 
the present measures of a government ; while the consequences of the 
private actions of an individual ordinarily terminate with himself, or are 
circumscribed within a narrow compass : — 

Whence it follows, that an individual may on numerous occasions, 
meritoriously indulge the emotions of generosity and benevolence, not 
only without an eye to, but even at the expense of, his own interest. 
But a government can rarely, if at all, be justifiable in pursuing a simi- 
lar course ; and, if it does so, ought to confine itself within much stricter 
bounds.* Good offices which are indifferent to the interest of a nation 

* This conclusion derives confirmation from the reflection^ that under every form 
<of government, rulers are only trustees for the happiness and interest of their na- 
tion, and cannot, consistently vi^ith their trust, follow the suggestions of kindness 
or humanity towards others, to the prejudice of their constituents. 



4^ LETTERS OF PACIFICUS. 

performing them, or which are compensated by the existence or expect- 
ation of some reasonable equivalent, or which produce an essential good 
to the nation to which they are rendered, without real detriment to the 
affairs of the benefactors, prescribe perhaps the limits of national gen- 
erosity or benevolence. 

It is not here meant to recommend a policy absolutely selfish or inter- 
ested in nations ; but to show, that a policy regulated by their own in- 
terest, as far as justice and good faith permit, is and ought to be, their 
prevailing one ; and that either to ascribe to them a different principle 
of action, or to deduce, from the supposition of it, arguments for a self- 
denying and self-sacrificing gratitude on the part of a nation, which may 
have received from another good offices, is to misrepresent or miscon- 
ceive what usually are, and ought to be, the springs of national conduct. 

These geneml reflections will be auxiliary to *a just estimate of ou'r 
real situation with regard to France ; of which a closer view will be 
taken in a succeeding paper. 



NUMBER V. 



France, the rival, time immemorial,, of Great Britain, had, in the course 
of the war which ended in 1763, suffered from the successful arms of 
the latter the severest losses and the most mortifying defeats. Britain 
from that moment had acquired an ascendant in the affairs of Europe, 
and in the commerce of the world, too decided and too humiliating to be 
endured without extreme impatience, and an eager desire of finding a 
favorable opportunity to destroy it and to repair the breach which had 
been made in the national glory. The animosity of wounded pride con- 
spired with calculations of interest, to give a keen edge to that impa- 
tience, and to that desire. 

The American revolution offered the occasion. It early attracted the 
notice of France, though with extreme circumspection. As far as coun- 
tenance and aid may be presumed to have been given prior to the epoch 
of the acknowledgment of our independence, it will be no unkind dero- 
gation to assert, that they were marked neither with liberality, nor with 
vigor ; that they wore the appearance rather of a desire to keep alive 
disturbances which might embarrass a rival, than of a serious design to 
assist a revolution, or a serious expectation that it could be effected. 

The victories of Saratoga, the capture of an army, which went a great 
way towards deciding the issue of the contest, decided also the hesita- 
tions of France. Tbey established, in the government of that country, 
a confidence of our ability to accomplish our purpose, and, as a conse- 
quence of it, produced the treaties of alliance and commerce. 

It is impossible to see in all this any thing more than the conduct of a 
jealous competitor, embracing a most promising opportunity to repress 
the pride, and diminish the power of a dangerous rival, by seconding a 
successful resistance to its authority, vvith the object of lopping off a val- 
uable portion of its dominions. The dismemberment of this country 
from Great Britain- was an obvious, and a very important interest of 
France. It cannot be doubted, that was both the determining motive 
and an adequate compensation, for the assistance afforded to us. 



LETTERS OF PACIFICUS. 431 

Men of sense, in this country, derived encouragemet to the part which 
their zeal for liberty prompted them to take in our revolution, from the 
probability of the co-operation of France and Spain. It w^ill be remem- 
bered, that this argument was used in the publications of the day ; but 
upon what was it bottomed ? Upon the known competition between those 
nations and Great Britain, upon their evident interest to reduce her pow- 
er and circumscribe her empire; not certainly upon motives of regard 
to our interest, or of attachment to our cause. Whoever should have 
alleged the latter, as the grounds of the expectation held out, would have 
been then justly considered as a visionary or a deceiver. And whoever 
shall now ascribe to such motives the aid which we did receive, would 
not deserve to be viewed in a better light. 

The inference from these facts is not obscure. Aid and co-operation, 
founded upon a great interest, pursued and obtained by a party rendering 
them, is not a proper stock upon whicji to engraft that enthusiastic grati- 
tude, which is claimed from us by those who love France more than the 
United States. 

This view of the subject, extorted by the extravagancy of such a claim, 
is not meant to disparage the just pretensions of France to our good-will. 
Though neither in the motives to the succors which she furnished, nor in 
their extent, (considering how powerfully the point of honor, in such 
war, reinforced the considerations of interest when she was once en- 
gaged,) can be found a sufficient basis for that gratitude which is the 
theme of so much declamation ; yet we shall find, in the manner of 
affording them, just cause for our esteem and friendship. 

France did not attempt, in the first instance, to take advantage of our 
situation to extort from us any humiliating or injurious concessions, as 
the price of her assistance ; nor afterwards in the progress of the war, 
to impose hard terms as the condition of particular aids. 

Though this course was certainly dictated by policy ; yet it was a 
magnanimous policy, such as always constitutes a title to the approbation 
and esteem of mankind ; and a claim to the friendship and acknowledg- 
ment of the party in whose favor it is practised. 

But these sentiments are satisfied on the part of a nation, when they 
produce sincere wishes for the happiness of the party from whom it has 
experienced such conduct, and a cordial disposition to render all good and 
friendly offices which can be rendered without prejudice to its own solid 
and permanent interests. 

To ask of a nation so situated, to make a sacrifice of substantial in- 
terest ; to expose itself to the jealousy, ill-will or resentment of the rest 
of the world ; to hazard, in an eminent degree, its own safety, for the 
benefit of the party who may have observed towards it the conduct which 
has been described ; would be to ask more than the nature of the case 
demands, more than the fundamental maxims of society authorize, more 
than the dictates of sound reason justify. 

A question has arisen, with regard to the proper object of that grati- 
tude, which is so much insisted upon ; whether it be the unfortunate 
prince by whom the assistance received was given ; or the nation of 
whom he was the chief or the organ ? It is extremely interesting to the 
national justice, to form right conceptions on this point. ' 

The arguments which support the latter idea, are as follows : ■ — "Louis 
" the XVI. was but the constitutional agent of the French people. He 



423 LETTERS OF PACIFICUS. 

" acted for and on behalf of the nation ; it was with their money and 
" their blood he supported our cause. It is to them, therefore, not to 
" him, that our obligations are due. Louis the XVI. in taking our part, 
" was no doubt actuated by state policy. An absolute prince could not 
" love liberty. But the people of France patronized our cause with zeal, 
" from sympathy in its object. The people therefore, not its monarch, 
*' are entitled to our sympathy." 

This reasoning may be ingenious ; but is not founded in nature or fact. 

Louis the XVI., though no more than the constitutional agent of the 
nation, had at the time the sole power of managing its affairs, the legal 
right of directing its will and its force. It belonged to him to assist us, 
or not, without consulting the nation ; and he did assist without such con- 
sultation. His will alone was active ; that of the nation passive. If 
there was kindness in the decision, demanding a return of good-will, it 
was the kindness of Louis XVI., — his heart was the depository of the 
sentiment. Let the genuine voice of nature then, unperverted by politi- 
cal subtleties, pronounce whether the acknowledgment, which may be 
due for that kindness, can be equitably transferred from him to others, 
who had no share in the decision ; whether the principle of gratitude 
ought to determine us to behold with indifference his misfortunes, and 
with satisfaction the triumphs of his foes. 

The doctrine, that the prince is the organ of his nation, is conclusive 
to enforce the obligations of good faith between two states ; in other 
words, the observance of duties stipulated in treaties for national pur- 
poses ; and it will even suffice to continue to a nation a claim to the 
friendship and good-will of another, resulting from friendly offices done 
by its prince ; but it would be to carry the principle much too far, and to 
render it infinitely too artificial to attribute to it the effect of transferring 
such a claim from the prince to the nation, by way of opposition and 
contrast. Friendship, good-will, gratitude for favors received, have so 
inseparable a reference to the motives with which, and to the persons by 
whom they were rendered, as to be incapable of being transferred to 
another at his expense. 

But Louis XVI., it is said, acted from reasons of state, without regard 
to our cause ; while the people of France patronized it with zeal and at- 
tachment. 

As far as the assertion with regard to the monarch may be well found- 
ed, and is an objection to our gratitude to him, it destroys the whole fa- 
bric of gratitude to France. For our gratitude is, and must be, relative 
to the services performed. The nation can only claim it on the score of 
their having 'been rendered by 4heir agent with their means. If the 
views with \Yhich he performs them divested them of the merit which 
ought to inspire gratitude, none is due. The nation no more than their 
agent can claim it. 

With regard to the individual good wishes of the citizens of France, 
as they did not produce the services rendered to us as a nation, they can 
be no foundation for national gratitude. They can only call for a recip- 
rocation of individual good wishes. They cannot form the basis of pub- 
lic obligation. 

But the assertion takes more for granted than there is a reason to be- 
lieve true. 

Louis the XVI. no doubt took part in our contest from reasons of state ; 



LETTERS OF PACIFICUS. 423 

but Louis the XVI. was a man humane and kind-hearted. The acts of 
his early youth had entitled him to this character. It is natural for a 
man of this disposition to become interested in the cause of those whom 
he protects or aids ; and if the concurrent testimony of the period may 
be credited, there was no man in France more personally friendly to the 
cause of this country than Louis the XVI. I am much misinformed, if 
repeated declarations of the venerable Franklin did not attest this fact. 

It is a just tribute to the people of France to admit, that they manifested 
a lively interest in the cause of America ; but while motives are scan- 
ned, who can say how much of it is to be ascribed to the antipathy which 
they bore to their rival neighbor; how much to their sympathy in the 
object of our pursuit .'' It is certain that the love of liberty was not a 
national sentiment in France, when a zeal for our cause first appeared 
among that people. 

There is reason to believe too, that the attachment to our cause, which 
ultimately became very extensive, if not general, did not originate with 
the mass of the French people. It began with the circles more immedi- 
ately connected with the court, and was thence diffused through the na- 
tion. 

This observation, besides its tendency to rectify ideas which are cal- 
culated to give a false current to the public feeling, may serve to check 
the spirit of illiberal invective, which has been v/antonly indulged against 
those distinguished friends of America, who, though the authors of the 
French revolution, have fallen victims to it ; because their principles 
would not permit them to go the whole length of an entire subversion of 
the monarchy. 

The preachers of gratitude are not ashamed to brand Louis the XVI. 
as a tyrant, La Fayette as a traitor. But how can we wonder at this, 
when they insinuate a distrust even of a ! ! ! 

In urguig the friendly disposition to our cause, manifested by the peo- 
ple of France, as a motive to our gratitude towards that people, it ought 
not to be forgotten, that those dispositions were not confined to the in- 
habitants of that country. They were eminently shared by the people 
of the United Provinces, produced to us valuable pecuniary aids from 
their citizens, and eventually involved them in the war on the same side 
with us. It may be added too, that here the patronage of our cause 
emphatically began with the mass of the community, not originating as 
in France with the government, but finally implicating the governmeni: 
in the consequences. 

Our cause had also numerous friends in other countries ; even in that 
with which we were at war. Conducted with prudence, moderation, 
justice, and humanity, it may be said to have been a popular cause 
among mankind, conciliating the countenance of princes, and the affec- 
tion of nations. 

The dispositions of the individual citizens of France can therefore in 
no sense be urged, as constituting a peculiar claim to our gratitude. As 
far aslhere is foundation for it, it must be referred to the services ren- 
dered to us ; and in the first instance, to the unfortunate monarch that 
rendered them. This is the conclusion of nature and reason. 



424 LETTERS OF PACIPICUS. 



NUMBER VI. 

The very men who not long since, with a holy zeal, would have been 
glad to make an auto de fe, ot any one who should have presumed to 
assign bounds to our obligalions to Louis the XVI., are now ready to con- 
sign to the flames those who venture even to think that he died a proper 
object of our sympathy or regret. The greatest pains are taken to ex- 
cite against him our detestation. His supposed perjuries and crimes 
are sounded in the public ear, with all the exaggerations of intemperate 
declaiming. All the unproved and contradicted allegations, which have 
been brought against him, are taken for granted, as the oracles of truth, 
on no better grounds than the mere general presumptions, that he could 
not have been a friend to a revolution which stripped him of so much 
power ; that it is not likely the convention would have pronounced him 
guilty, and consigned him to so ignominious a fate if he had been really 
innocent. 

It is possible that time may disclose facts and proofs, which will sub- 
stantiate the guilt imputed to Louis : but these facts and proofs, have not 
yet been authenticated to the world ; and justice admonishes us to wait 
for their production and authentication. 

Those who have most closely attended to the course of the transac- 
tion find least cause to be convinced of the criminality of the decisased 
monarch. While his counsel, whose characters give weight to their as- 
sertions, with an air of conscious truth, boldly appeal to facts and proofs, 
in the knowledge and possession of the convention, for the refutation of 
the charges brought against him, the members of that body, in all the 
debates upon the subject which have reached this country, either direct- 
ly from France, or circuitously through England, appear to have content- 
ed themselves with assuming the existence of the facts charged, and in- 
ferring from them a criminality which, after the abolition of the royalty, 
they were interested to establish. 

The presumption of guilt drawn from the suggestions which have been 
stated, is more than counterbalanced by an opposite one, which is too 
obvious not to have occurred to many, though I do not recollect yet to 
have met with it in print. It is this : — 

If the convention had possessed clear evidence of the guilt of- Louis 
they would have promulgated it to the world in an authentic and un- 
questionable shape. Respect for the opinion of mankind, regard for 
their own chai-acter, the interest of their cause, made this an indipensa- 
bleduty; nor can the omission be satisfactorily ascribed to any other 
reason than the want of such evidence. 

The inference is, that the melancholy catastrophe of Louis XVI. was 
the result of a supposed political expediency, rather than of real crimi- 
nality. 

In a case so circumstanced, does it, can it consist with our justice or 
our humanity, to partake in the angry and vindictive passions which it 
is endeavored to excite against the unfortunate monarch } Was it a 
crime in him to have been born a prince ? Could this circumstance for- 
feit his title to the commiseration due to his misfortunes as a man. 

Would gratitude dictate to a people, situated as are the people of this 
country, to lend their aid to extend to the son the misfortunes of the 
father.? Should we not be more certain of violating no obligation of 



LETTERS OF PACIFICUS. 425 

that kind, and of not innplicating the delicacy of our national character, 
by taking no part in the contest, than by throwing our weight into either 
scale. 

Would not a jusf estiinale of the origin and progress of our relations 
to France, viewed with reference to the mere question of gratitude, lead 
us to this result — that we ought not to take part against the son and suc- 
cessor of a father, on whose sole will depended the assistance which we 
received ; that we ought not to take part with him against the nation, 
whose blood and whose treasure had been, in the hands of the father, 
the means of that assistance ? 

But we are sometimes told, by way of answer, that the cause of France 
is the cause of liberty ; and that we are bound tu assist the nation on the 
score of their being engaged in the defence of that cause. How far this 
idea ought to carry us, will be the subject of future examination. 

It is only necessary here to observe, that it presents a question essen- 
tially different from that which has been in discussion. If we are boiuid 
to assist the French nation, on the principle ,of their being embarked in 
the deleiice of liberty, this is a consideration altogether foreign to that of 
gratitude. Gratitude has reference only to kind offices received. ' The 
obligation to assist the cause of liberty, myst be deduced from the merits 
of that cause, and from the interest we have in its support. It is possi- 
ble that the benefactor may be on one side ; the defenders and support- 
ers of liberty on the other. Gratitude may point one way, the love of 
liberty another. It is therefore importatit to just conclusions, not to con- 
found the two things. 

A sentiment of justice, more than the importance of the question it- 
self, has led to so particular a discussion respecting the proper object of 
whatever acknowledgment may be due from the United States, for the 
aid which they received from France during their own revolution. 

The extent of the obligation which it may impose is b}' far the most 
interesting inquiry. And though it is presumed, that enough has been 
already said to evince, that it does in no degree require us to embark in 
the war; yet there is another, and a very simple view of the subject, 
which is too convincing to be omitted. 

The assistance derived from France was afforded by a great and pow- 
erful nation, possessing numerous armies, a respectable fleet, and the 
means of rendering it a match for the force to be encountered. The po- 
sition of Europe was favorable to the enterprise ; a general disposition 
prevailing to see the power of Britain abridged. The co-operation of 
Spain svas very much a matter of course, and the probability of other 
powers becoming engaged on the same side not remoie. Great Britain 
was alone, and likely to continue so; France had a great and persuasive 
interest in the separation of this country from her. In this situation, with 
much to hope and little to fear, she took part in our quarrel. 

France is at this timC'Singly engaged with the greatest part of Europe, 
including all the first-rate powers, except one ; and in danger of being 
engaged with the rest. To use the emphatic language of a memi)er of 
the national convention, she has but one enemy, and that is all Europe. 
Her internal affairs are, without doubt, in serious disorder; her navy 
comparatively inconsiderab'e. The United States are a young nation ; 
their population, though rapidly increasing, still small ; their resources, 
though growing, not great ; without armies, without fleets ; capable, froni 

54 



LETTERS OF PACIPICUS. 

the nature of the country and the spirit of its inhabitants, of immense 
exertions for self-defence, but little capable of those external efforts 
which could materially serve the cause of France. So far from having 
any direct interest in going to war, they have the strongest motives of in- 
terest to avoid it. By embarking with France in the war, they would 
have incomparably more to apprehend than to hope. 

This contrast of situations, and inducements, is alone a conclusive de» 
monstration that the United States are not under an obligation, from grat- 
itude, to join France in the war. The utter disparity between the cir- 
cumstances of the service to be rendered, and of the service received, 
proves, that the one cannot be an adequate basis of obligation for the 
other. There would be a manifest want of equality, and consequently 
of reciprocity. 

But complete justice would not be done to this question of gratitude, 
w^e no notice to be taken of the address which has appeared in the 
public papers, (the authenticity of which has not been impeached,) from 
the convention of France to the United Stales, announcing the appoint- 
ment of the present minister plenipotentiary. In that address the con- 
vention informs us, that " the support which the ancient French court had 
" afforded the United States to recover their independence, was only the 
" fruit of a base speculation ; and that their glory offended its ambitious 
" views, and the ambassadors of France bore the criminal orders for stop- 
" ping the career of their prosperity." 

If this information is to be admitted in the full force of the terms, it 
is very fatal to the claim of gratitude towards France. An observation 
similar to one made in a former paper occurs here. If the organ of the 
nation, on whose will the aid which was given depended, acted not only 
from motives irrelative to our advantage, but from unworthy motives, or 
as is alleged, from a base speculation ; if afterwards he displayed a tem- 
per hostile to the confirmation of our security and prosperity, he acquir- 
ed no title to our gratitude in the first instance, or he forfeited it in the 
second. And the people of France, who can only demand it in virtue 
of the conduct of their agent, must, together with him, renounce the pre- 
tension. It is an obvious principle, that if a nation can claim merit from 
the good deeds of its sovereign, it must answer for the demerit of his 
misdeeds. 

But some deductions are to be made from the suggestions in the ad- 
dress of the convention, on account of the motives which evidently dic- 
tated the communication. Their zeal to alienate the good-will of this 
country from the late monarch, and to increase the odium of the French 
nation againSt the monarchy, which was so ardent as to make them over- 
look the tendency of their communication to deprive their votaries 
among us of the plea of gratitude, may justly be suspected of exagger- 
ation. 

The truth probably is, that the base speculation charged, amounts to 
nothing more than that the government of "France, in affording us assist- 
ance, was actuated by the motives which have been attributed to it, name- 
ly, the desire of promoting the interest of France, by lessening the power 
of Great Britain, and opening a new channel of commerce to herself; 
that the orders said to have been given to the ambassadors of France, to 
stop the career of our prosperity, are resolvable into a speculative jeal- 
ousy of the ministers of the day, lest the United States, by becoming as 



LETTERS OF PACIFICUS. 427 

powerful and great as they are capable of being under an efficient gov- 
ernment, might prove formidable to the European possessions in America, 
With these qualifications, the address offers no new discovery to the in- 
telligent and unbiased friends of their country. They knew long ago, 
that the interest of France had been the governing motive of the aid af- 
forded ; and they saw clearly enough in the conversation and conduct of 
her agents, while the present constitution of the United States was under 
consideration, that the government, of which they were the instruments, 
would have preferred our remaining under the old form'. They perceiv- 
ed also, that these views had their effect upon some of the devoted par- 
tisans of France among ourselves ; as they now perceive, that the same 
characters are embodying, with all the aid they can obtain, under the 
same banner, to resist the operation of that government of which they 
withstood the establishment. 

All this was, and is seen ; and the body of the people of America are 
too discerning to be long in the dark about it ; too wise to have been mis- 
led by foreign or domestic machinations, they adopted a constitution 
which was necessary to their safety and to their happiness; too wise still 
to be ensnared by the same machinations, they will support the govern- 
ment they have established, and will take care of their own peace, in 
spite of the insidious efforts which are employed to detach them from 
the one, and to disturb the other. 

The information which the address of the convention contains, ought 
to serve as an instructive lesson to the people of this country. _ Tt ought 
to teach us not to overrate foreign friendships ; and to be upon our guard 
against foreign attachments. The former will generally be found hollow 
and delusive ; the latter will have a natural tendency to lead us aside from 
our own true interest, and to make us the dupes of foreign influence. 
Both serve to introduce a principle of action, which, in its effects, if the 
expression may be allowed, is anti-national. Foreign influence is truly 
the Gi'ecian horse to a republic. We cannot be too careful to exclude 
its entrance. Nor ought we to imagine, that it can only make its ap- 
proaches in the gross form of direct bribery. It is then most dangerous 
when it comes under the patronage of our passions, under the auspices 
of national prejudice and partiality. 

I trust the morals of this country are yet too good to leave much to be 
apprehended on the score of bribery. Caresses, condescensions, flat- 
tery, in unison with our prepossessions, are infinitely more to be feared : 
and as far as there is opportunity for corruption, it is to be remembered, 
that one foreign power can employ this resource as well as another ; and 
that the effect must be much greater, when it is combined with other 
means of influence, than where it stands alone. , 



428 LETTERS OF PACIFICUS. 



NUMBER VII. 

The remaining objection to the proclamation of neutrality, still to be 
discussed, is, that it was out of lime and unnecessary. 

To give color to this objection it is asked, why did not the proclama- 
tion a|)|)f;ar, when the war cominenced with Austria and Prussia ? Why 
was it forburne, till Great Britain, Holland and Spain became engaged ? 
Why did not the government wait, till the arrival at Philadel|)hia of the 
minister of the French republic ? Why did it volunteer a declaration not 
required of it by any of the belligerent parties. 

To most of these questions, solid answers have already appeared in 
the public prints. Little more can be done, than to repeat and enforce 
ihem. 

Austria and Prussia are not maritime powers Contraventions of neu- 
trality as against them, were not likely to take place to any extent, or in 
a shape. that would attract their notice. It would therefore have been 
useless, if not ridiculous, to have made a formal declaration on the sub- 
ject, while they were the only parties opposed to France. 

But the reverse of this is the case with reyard to Spain, 'Holland, and 
Ens;!and. These are all commercial and maritime nations. It was to 
be expecod, that their attention would be immediately drawn towards the 
United States with sensibility, and even with jealousy. It was to be 
feared, that some of our citizens might be tempted by the prospect of 
gain to go into measures Vv'hich would injure them, and hazard the peace 
of the country. Attacks by some of these powers upon the |)ossessions 
of France in America, were to be looked for as a matter of course 
While the views of tlic United States, as to that particular, were proble- 
matical, they would naturally consider us as a power that might become 
their enemy. This thev would have been the more apt to do on account 
of those public demonstrations of attachryient lo the cause of France, of 
which there has been so prodigal a display. Jealousy, every body 
knows, especially if sharpened by resentment, is apt to lead to ill-treat- 
ment ; ill-treatment to hostility. 

In proportion to the probability of our being regarded with a suspi- 
cious, and consequently an unfriendly eye, by the powers at war with 
France; in proportion to the danger of imprudences being committed 
by any of our citizens, which might occasion a rupture with them, the 
policy on the part of the government of removing all doubt as to its 
own disposition, and of deciding the condition of the United States, in 
the view of the parties concerned, became obvious and urgent. 

Were the United States, now, what, if we do not rashfy throw away 
the advantages we possess, they may expect to be in fifteen or twenty 
years, thire would have been more room for an insinuation which has 
been thrown out, namely, that they ought to have secured to themselves 
some advantage, as the consideration of their neutralMy : an idea, how- 
ever, the justice and magnanimity of which cannot be commended. But 
in their presen' situation, with their present strength and resources, an 
attempt of that, kind could have only served to display pretensions at 
once excessive and unprincipled. The chance of obtaitnng any collat- 
eral advantage, if such a chance there was, by leaving doubt of their in- 
tentions, as to peaee or war, could not wisely have been put, for a single 
ins'ant, in competition with the tendency, o! a contrary conduct to secure 
our peace. 



LETTERS OF PACIFICUS. 429 

The conduciveness of the declaration of neutrality to that end, was 
not the only reconmiendation to the adoption of the measure. It was of 
great importance that our own citizens should understand, as soon as 
possible, the opinion which the government entertainfd of the nature of 
our relations to the warring parties, and of the propriety or expediency 
of our faking a side or remaining neuter. The arrangements of our 
merchants could not but be very differently affected by the one hypothe- 
sis, or the other ; and it would necessarily have been very detrimental 
and perplexing to them to have been left in uncertainty. It is not requi- 
site to say, how much our agriculture and other interests would have 
been likely to have suffered by embarrassments to our merchants. 

The idea of its having been incumbent on the government to delay the 
measure for the arrival of the minister of tlie French republic, is as absurd 
as it is humiliating. Did the executive stand in need of the logic of a 
foreign agent to enlighten it as to the duties or interests of the nation .'' 
Gr was it bound to ask his consent to a step which appeared to itself con- 
sistent to the former and conducive to the latter .? 

The sense of our treaties was to be learnt from the instruments them- 
selves. It was not difficult to pronounce beforehand, that we had a great- 
er interest in the preservation of peace, than in any advantages with which 
France might tempt our participation in the war. Commercial privileges 
were ail that she could offer of real value in our estimation, and a carle 
hlanche on this head would have been an inadc.'quate recompense for re- 
nouncing peace, and committing ourselves voluntarily to the chances of 
so precarious and perilous a war. Besides, if the privileges which might 
have been conceded were not foimded in a real pernianf^nt mutual in- 
terest, of what value would be the treaty that should concede them ? 
Ought not the calculation, in such case, to be upon a speedy resumption 
of them, with perhaps a quarrel as the pretext .'' On the other hand, may 
we not trust that commercial privileges, which are truly founded in mu- 
tual interest, will grow out of that interest ; without the necessity of giv- 
ing a premium for them at the expense of our peace .'' 

To what purpose then was the executive to have waited for the arrival 
of the minister ? Was it to give opportunity to contentious discussions; 
to intriguing machinations ; to the clamors of a ffiction won to a foreign 
interest .? 

Whether the declaration of neutrality, issued upon or without the re- 
quisition of any of the belligerent powers, can only be known to their 
respective ministers, and to the |)roper officers of our government. But 
if it be true, that it issued Without any such requisition, it is an additional 
indication of the wisdom of the mi-asure. 

It is of much importance to the end of preserving peace, that the bel- 
ligerent nations sh.ould be thoroughly convinced of the sincerity of our 
intcntif)ns to observe the neutrality we profess ; and it cannot fail to have 
weight in producing this conviction, that the declaration ol it was a 
spontaneous act ; not stimulated by any requisition on the part of either 
of them ; but proceeding purely from our own view of our duly and 
interest. 

It was not surely necessary for the government to wait for such a re- 
quisition ; while there were advantages, and no disadvantages, in antici- 
pation. The benefit of an early notification to our merchants, conspired 
with the consideration just mentioned to recommend the course which 
*.'a« nursued. 



430 LETTERS OF PACIFIGUS. 

If in addition to the rest, the early manifestation of the views of the 
government has had any effect in fixing the public opinion on the subject, 
and in counteracting the success of the efforts which, it vv^as to be fore- 
seen would be made to distract and disunite, this alone would be a great 
recommendation of the policy of having suffered no delay to intervene. 

What has been already said, in this and preceding papers, affords a 
full answer to the suggestion, that the proclamation was unnecessary. It 
would-be a waste of time to add more. 

But there has been a criticism several times repeated, which may de- 
serve a moment's attention. It has been urged, that the proclamation 
ought to have contained some reference to our treaties ; and that the gen- 
erality of the promise to observe a conduct friendly and impartial to- 
wards the belligerent powers, ought to have been qualified with expres- 
sions equivalent to these, " as far as may consist with the treaties of the 
United States^ 

The insertion of such a clause would have entirely defeated the object 
of the proclamation, by rendering the intention of the government equiv- 
ocal. That object was to assure the powers at war and our own citizens, 
that in the opinion of the executive, it was consistent with the duty and 
interest of the nation to observe neutrality, and that it was intended to 
pursue a conduct corresponding with that opinion. Words equivalent to 
those contended for would have rendered the other part of the declara- 
tion nugatory, by leaving it uncertain, wheilier the executive did or did 
not believe a state of neutrality to be consistent with our treaties. Neither 
foreign powers, nor our own citizens, would have been able to have drawn 
any conclusion from the proclamation ; and both would have had a right 
to consider it as a mere equivocation. , 

By not inserting any such ambiguous expressions, the \ proclamation 
was susceptible of an intelligible and proper construction. While it de- 
noted on the one hand, that in the judgment of the executive, there was 
nothing in our treaties obliging us to become a party in the war ; it left it 
to be expected on the other, that all stipulations compatible with neutral- 
ity, according to the laws and usages of nations, would be enforced. It 
follows, that the proclamation, was in this particular, exactly what it 
ought to have been. 

The words, " make known the disposition of .the United States," have 
also given a pretext for cavil. It has been asked, how could the president 
undertake to declare the disposition of the United States ? The people, 
for aught he knew, may have a very different sentiment. Thus, a con- 
formity with republican propriety and modesty is turned into a topic of 
accusation. 

Had the president announced his own disposition, he would have been 
chargeable with egotism, if not presumption. The constitutional organ 
of intercourse between the United States and foreign nations, whenever 
he speaks to them, it is in that capacity ; it is in the name and on the be- 
half of the United States. It must therefore be with greater propriety, 
that he speaks of their disposition, than of his own. 

It is easy to imagine, that occasions frequently occur in the communi- 
cations to foreign governments and foreign agents which render it neces- 
sary to speak of the friendship or friendly disposition of the United 
States, of their disposition to cultivate harmony and good understanding, 
to reciprocate neighborly offices, and the like. It is usual, for example, 



LETTERS OF PACIFICUS. 431 

when public ministers are received, for some complimentary expressions 
to be interchanged. It is presumable, that the late reception of the French 
minister did not pass, without some assurance on the part of the presi- 
'dent, of the friendly disposition of the United States towards France. 
Admitting it to have happened, would it be deemed an improper arroga- 
tion ? If not, why was it more so, to declare the disposition of the Unit- 
ed States to observe a neutrality in the existing war. 

In all such cases, nothing more is to be understood, than an official ex- 
pression of the political disposition of the nation inferred from its polit- 
ical relations, obligations and interests. It is never to be supposed, that 
the expression is meant to convey the precise state of the individual sen- 
timents or opinions of the great mass of the people. 

Kings and princes speak of their own dispositions ; the niagistrates of 
republics of the dispositions of their nations. The president, therefore, 
has evidently used the style adapted to his situation, and the criticism 
upon it is .'plainly a cavil, PACIFICUS. 



THE LETTERS OF HELVIDIUS 



BY JAMES MADISON. 



NUMBER I, 



SevEtiAL pieces with tiie signature of Pacificus were lately published, 
which have been read with singular pleasure and applause, by the for- 
eiuiHM's and degenerate citiz(-ns among us, who hate our republican gov- 
ernment, and the French revolut'on ; whilst the publication seems to 
have been too little regarded, or too much despised by the steady friends 
to boll). 

Had the doctrines inculcated by the writer, with the natural conse- 
quences from them, been nakedly presented to the public, this treat- 
ment might have been proper. Their true character would then have 
struck every eye, and been rejected by the feelings of every heart. But 
they offer themselves to the reader in the dress of an elaborate disser- 
tation ; tliey are mingled with a few truths that may serve them as 
a passport to credulity ; and they are introduced with professions of 
anxi(;ty for the preservation of peace, for the welfare of the government, 
and. for the respect due to the present head of the executive, that may 
prove a snare to patriotism. 

In these disguises they have appeared to claim the attention 1 propose 
to bestow on them ; with a view to show, from the -jjublication itself, that 
under color of vindicating an important public act, of a chief magis- 
trate vvllo enjoys the confidence and love of his country, principles are 
advanced which strike at the vitals of its constitution,, as well as to its 
honor and true interest. 

As it is not improbable that attempts may be made to apply insinua- 
tions which are seldom spared vviien particular purposes are to b#an- 
svvered, to the author of the ensuing observations, it may not be improper 
to premise, that he is a friend to the constitution, that he wishes for the 
preservation of -peace, and that the present chief magistrate has not a 
fellow-citizen, who is penetrated with deeper respect for liis merits, or 
feels a purer solicitude for his glory. 

This declaration is made with no view of courting a more favorable 
car to what may be said than it deserves. The sole purpose of it is, to 
obviate imputations which might weaken the impressions of truth ; and 
which are the more likely to be resorted to, in proportion as solid and 
fair arguments may be wanting. 

The substance of the first piece, sifted from its inconsistencies and its 
vague expiessions, may be thrown into the following propositions : — 

That the powers of declaring war and making treaties are, in their 
nature, executive powers. 



LETTERS OF HELVIDIUS. 433 

That being particularly vested by the constitution in other depart- 
ments, they are to be considered as exceptions out of the general grant 
to the executive department: — 

That being, as exceptions, to be construed strictly, the powers not 
strictly within them, remain with the executive : — 

That the executive consequently, as the organ of intercourse with for- 
eign nations, a-nd the interpreter and executor of treaties, and the law 
of nations, is authorized to expound all articles of treaties, those involv- 
ing Questions of war and peace, as well as others ; — to judge of the ob- 
ligations of the United States to make war or not, under any casus fcsde- 
ris or eventual operation of the contract, rela|ing to war ; and to pro- 
nounce the state of things resulting from the obligations of the United 
■States, as understood by the executive : — 

That in particular the executive had authority to judge, whether in the 
case of the mutual guaranty between the United States and France, the 
former were bound by it to engage in the war : — 

That the executive has, in pursuance of that authority, decided that 
the United States are not bound: — And 

That its proclamation of the 22tid of April last, is to be taken as the 
effect and expression of that decision. 

The basis of the reasoning is, we perceive, the extraordinary doctrine, 
that the powers of making war, and treaties, are in their nature execu- 
!tive ; and therefore comprehended in the general grant of executive 
power, where not especially and strictly excepted out of the grant* 

Let us examine this doctrine : and that we may avoid the possibility 
of mistaking the writer, it shall be laid down m his own words :; a pre- 
caution the more neces^iry, as scarce any thing else' could outweigh the 
improbability, that so extravagant a tenet should be hazarded at so early 
a day, in the face of the public. 

His v/ords are — -" Two of these [exceptions and qualifications to the 
" executive powers] have been already noticed — -the participation of the 
" senate, in the appointment of officers, and the making of treaties. A 
" tkird rerrstains to be mentioned — the right of the legislature to declare 
*' war, and grant letters of marque and reprisal^ 

Again — *■' It deserves to be remarked, that as the participation of the 
*' senate in the making of treaties, and the power of the legislature to 
" declare war, are exceptions out of the general executive power, vested 
" in the president ^ they are to be construed st?'ictli^, and ought to be 
" extended no further than is essential to their execution." 

If there be any countenance to these positions, it must be found either, 
first, in the writers of authority, on public law ; or, 2d, in the quality 
and operation of the powers to make war and treaties 5 or 3d, in the 
constitution of the United States. 

It would be of httle use to enter far into the first source of informa- 
tion, not only because our own reason and our own constitution, are the 
best guides ; but because a jus-t analysis and discrimination of the powers 
of government, according to their executive, legislative, and judiciary 
qualities, are not to be expected in the works of the most received ju- 
rists, who wrote before a critical attention was paid to those objects, and 
whh their eyes too much on monarchical governments, where all powers 
are confounded in the sovereignty of the prince. It will be found hovt^- 
ever, I believe, that all of them, particularly Wolsius, Burlemaqui, and 

55 



434 LETTERS OP HELVIDIUS. 

Vattel, speak of the povvers to declare war, to conclnde peace, and to 
form alliances, as among the highest acts of the sovereignty ; of which 
the legislative power must at least be an integral and pre-eminent part. 

Writers, such as Locke, and Montesquieu, who have discussed more 
particularly the principles of liberty and the structure of government, 
lie under the same disadvantage, of having written before these subjects 
M^ere illuminated by the events and discussions which distinguish a very 
recent period. Both of them too are evidently warped by a regard to 
the particular government of England, to which one of them owed alle- 
giance ;* and the other profes'sed an admiration bordering on^ idolatry. 
Montesquieu, however, has rather distinguished himself by enforcing the 
reasons and the importance of avoiding a confusion of the several pow- 
ers of government, than by enumerating and defining the powers which 
belong to each particular class. And Locke, notwithstanding the early 
date of his work on civil government, and the example of his own gov- 
ernment before his eyes, admits that the particular powers in question, 
which, after some of the writers on public law he caWs federative, are 
really distinct from the executive, though almost always united with it, 
and hardly to be separated into distinct hands. Had he not lived under 
a monarchy, in which these powers were united ; or had he written by 
the lamp which truth now presents to lawgivers, the last observation 
would probably never have dropped from his pen. But let us quit a field 
of research which is more likely to perplex than to decide, and bring 
the question to othe^tests of ,which it will be more easy to judge. 

2. If we consult for a moment, the nature and operation o^ the two 
•powers to declare war and to make treaties, it will be impossible not to 
see, that they can never fall within a proper definition of executive powers. 
The natural province of the executive magistrate is to execute laws, as 
that of the legislature is to make laws. All his acts, therefore, properly 
executive, must presuppose the existence of the laws to be executed. A 
treaty is not an execution of laws : it does not presuppose the existence 
of laws. It is, on the contrary, to have itself the force of a law, and to 
• be carried into execution like all other laws by the executive magistrate. 
To say then that the power of making treaties, which are confessedly 
laws, belongs naturally to the department which is to execute laws, is to 
say, that the executive department naturally includes a legislative power. 
In theory this is an absurdity — in practice a tyrannj. 

The power to declare war is subject to similar reasoning. A declara- 
tion that there shall be war, is not an execution of laws : it does not 
suppose pre-existing laws to be executed : it is not, in any respect, an 
act merely executive. It is, on the contrary, one of the most deliberative 
acts that can be performed ; and when performed, has the effect of re- 
pealing all the laws operating in a state of peace, so far as they are in- 
consistent with a state of war ; and of enacting as a rule for the execu- 
tive, a new code adapted to the relation between the society .nid its for- 
eign enemy. In like manner, a conclusion of peace annuls all ihe laws 
peculiar to a state of war, and revives the general larvs incident to a 
Btate of peace. 

These remarks will be strengthened by adding that treaties, particu- 

» The chnpter on prerogative shows, how much the reason of the philosopher 
was clouded by the royalism of the Englishman. 



LETTERS OF HELYIDIUS. 435 

larly treaties of peace, have sometimes the effect of changing not only 
the external laws of the society, but operate also on the internal code, 
which is |)urely municipal, and to which the legislative authority of the 
country is of itself competent and complete. 

From this view of the subject it must be evident, that although the ex- 
ecutive may be a convenient organ of preliminary communications with 
foreign governments, on the subjects of treaty or war ; and the proper 
agent for carrying into execution the final determinations of the compe- 
tent authority ; yet it can have no pretensions, from the nature of the 
powers in question compared with the nature of the executive trust, to 
that essential agency which gives validity to such determinations. It 
must be further evident, that if these powers be not in their nature purely- 
legislative, they partake so much more of that, than of any other quality, 
that under a constitution leaving them to result to their most natural de- 
partment, the legislature would be without a rival in its claim. 

Another important inference to be noted is, that the powers of making 
war and treaty being substantially of a legislative, not an executive na- 
ture, the rule of interpreting exceptions strictly must narrow, instead of 
enlarging, executive pretensions on those subjects. 

3. It remains to be inquired, whether there be any thing in the consti- 
tution itself, which shows, that the powers of making war and peace are 
considered as of an executive nature, and as comprehended within a gen- 
eral grant of executive power. 

it will not be pretended, that this appears from any direct position to 
be found in the instrument. 

If it were deducible from any particular expressions, it may be pre- 
sumed, that the publication would have saved us the trouble of the re- 
search. 

Does the doctrine, then, result from the actual distribution of powers 
among the^several branches of the government ? or from any fair anal- 
ogy between the powers of war and treaty, and the enumerated powers 
vested in the executive alone ? 

Let us examine : — 

In the general distribution of powers we find that of declaring war ex- 
pressly vested in the congress, where every other legislative power is 
declared to be vested ; and without any other qualification than what is 
common to every other legislative act. The constitutional idea of this 
power would seem then clearly to be, that it is of a legislative, and not 
an executive nature. 

This conclusion becomes irresistible, when it is recollected, that the 
constitution cannot be supposed to have placed either any power legisla- 
tive in its nature, entirely among executive powers, or any power exec- 
utive in its nature, entirely among legislative powers, without charging 
the constitution, with that kind of intermixture and consolidation of dif- 
ferent powers, which would violate a fundamental principle in the organ- 
ization of free governments. If it were not unnecessary to enlarge on 
this topic here, it could be shown, that the constitution was originally vin- 
dicated, and has been constantly expounded, with a disavowal of any- 
such intermixture. 

The power of treaties is vested jointly in the president and in the sen- 
ate, which is a branch of the legislature., From this arrangement mere- 
ly, there can be no inference that would necessarily exclude the power 



436 LETTERS OF HELVIDIUS. 

from the executive class : since the senate is joined with the president in 
another power, that of appointing to offices, which, as far as relate to ex- 
ecutive offices at least, is considered as of an executive nature. Yet on 
the other hand, there are sufficient indications that the power of treaties 
is regarded by the constitution as materially different from mere execu- 
tive power, and as having more affinity to the legislative than to the ex- 
ecutive character. 

One oircumstance indicating this, is the constitutional regulation under 
which the senale give their consent in the ease of treaties. In all other 
cases, the consent of the body is expressed by a majority of voices. In 
this particular case, a concurrence of two-thirds at least is made neces-- 
sary, as a substitute or compenst^tion for the other branch of the legisla- 
ture, which, on certain occasions, could not be conveniently a party to 
the transaction. 

But the conclusive circumstance is, that treaties, when formed accord- 
ing to the constitutional mode, are confessedly to have the force and op- 
eration of laws, and are to be a rule for the courts in controversies be- 
tween man and man, as much as any other Jaws. They are even em- 
phatically declared by the constitution to be •>' the supreme law of the 
"land." 

So far the argument from the constitution is precisely in opposition to 
the doctrine. As little will be gained in its favor from a comparison of 
the two powers, with those particularly vested in the president alone. 

As there are but iqw^ it will be most satisfactory to review them one 
by one. ' 

" The president shall be commander in chief of the army and navy of 
" the United States, and of the militia when called into the actual service 
" of the United States." 

There can be no relation worth examining between this power and the 
general power of making treaties. And instead of being analogous to 
the power of declaring war, it affijrds a striking illustration of the incom- 
patibility of the two powers in the same hands. Those who are to con- 
duct a war cannot in the nature of things, be proper or safe judges, 
whether a war ought to be commenced^ continued, or concluded. They 
are barred from the latter functions by a great principle in free govern- 
ment, analogous to that which separates the sword from the purse, or the 
power of executing from the power of enacting laws. 

" He may require the opinion in writing of the principal officers in 
" each of the executive departments upon any subject relating to the 
" duties of their respective offices ; and he shall have power to grant re- 
" prieves and pardons for offences against the United States, except in 
" case of impeachment." These powers can have nothing to do with 
the subject. 

" The president shall have power to fill up vacancies that may happen 
" during the recess of the senate, by granting commissions which shall 
" expire at the end of the next session." The same remark is applicable 
to this power, as also to that of " receiving ambassadors, other public 
" ministers, and consuls." The particular use attempted to be made of 
this last power will be considered in another place. 

" He shall take care that the laws shall be faithfully executed, and 
" shall commission all officers of the United States." To see the laws 
faithfully executed constitutes the essence of the executive authority. 



LETTERS OF HELVIDIUS. 437 

But what relation has it to the power of making treaties and war, that is, 
of determining what the laws shall be with regard to other nations ? No 
other certainly than what subsists between the powers of executing and 
enacting laws ; no other, consequently, than what forbids a coalition of 
the powers in the same department. 

I pass over the few other specified functions assigned to the president, 
such as that of convening the legislature, &c., &c., which cannot be 
drawn into the present question. 

It may be proper, however, to take notice of the power of removal 
from office, which appears to have been adjudged to the president by the 
laws establishing the executive departments ; and which the writer has 
endeavored to press into his service. To justify any favorable inference 
from this case, it must be shown, that the powers of war and treaties are 
of «a kindred nature to the power of removal, or at least are equally 
within a grant of executive power. Nothing of this sort has been at- 
tempted, nor probably will be attempted. Nothing can in truth be clear- 
er, than that no analogy, or shade of analogy, can be traced between a 
power m the supreme officer responsible for the faithful execution of 
the laws, to displace a subaltern officer employed in the execution of the 
laws ; and a power to make treaties, and to declare war, such as these 
have been found to be in their nature, their operation, and their conse- 
quences. 

Thus it appears that by whatever standard we try this doctrine, it must 
be condemned as no less vicious in theory than it would be dangerous in 
practice. It is countenanced neither by the writers on law ; nor by the 
nature of the powers themselves ; nor by any general arrangements, or 
particular expressions or plausible analogies to be found in the constitu- 
tion. 

Whence then can the writer have borrowed it ? 

There is but one answer to this question. 

The power of making treaties and the power of declaring war, are 
royal prerogatives in the British government^ and are accordingly treat- 
ed as executive prerogatives by British commentators. 

We shall be the more confirmed in the necessity of this solution of the 
problem, by looking back to the sera of the constitution, and satisfying 
ourselves that the writer could not have been misled by the doctrines 
maintained by our own commentators on our own government. That I 
may not ramble beyond prescribed limits, I shall content myself with an 
extract from a work which entered into a systematic explanation and de- 
fence of the constitution ; and to which there has frequently been ascrib- 
ed some influence in conciliating the public assent to the government in 
the form proposed. Three circumstances conspire in giving weight to 
this cotemporary exposition. It was made at a time when no applica- 
tion to persons or measures could bias ; the opinion given was not tran- 
siently mentioned, but fornnally and critically elucidated : it related to a 
point in the constitution which must consequently have been viewed as 
of importance in the public mind. The passage relates to the power of 
making treaties ; that of declaring war, being arranged with such obvi- 
ous propriety among the legislative powers, as to be passed over without 
particular discussion. 

" Though several writers on the subject of government place that 
" power [of inaking treaties] in the class of executive authorities, yet t^is 



438 LETTERS OF HELYIDIUS. 

is evidently an arbitrary disposition. For if we attend carefully to its 
operation, it will be found to partake more of the legislative than of the 
executive character, though it does not seem strict^^y to fall within the 
definition of either of them. The essence of the legislative authority, 
is to enact laws ; or in other words, to prescribe rules for the regulation 
of the society : while the execution of the laws and the employment of 
the common strength, either for this purpose, or for the common de- 
fence, seem to comprise all the functions of the executive magistrate. 
The power of making treaties is plainly neither the one nor the other. 
It relates neither to the execution of the subsisting laws, nor to the en- 
action of new ones, and still less to an exertion of the common strength. 
Its obiects are contracts with foreign nations, which have the force of 
law., but derive it from the obligations of good faith. They are not 
rules prescribed by the sovereign to the subject, but agreements •be- 
tween sovereign and sovereign. The power in question seems there- 
fore to form a distinct department, and to belong properly neither to 
the legislative nor to the executive. The qualities elsewhere detailed 
as indispensable in the management of foreign negotiations., point out 
the executive as the most fit agent in those transactions ; whilst the vast 
importance of the trust, and the operation of treaties as laws plead 
strongly for the par^ticipation of the whole or a part of the legislative 
body in the office of making them." Federalist, p. 343.* 
It will not fail to be remarked on this commentary, that whatever 
doubts may be started as to the correctness of its reasoning against the 
legislative nature of the power to make treaties ; h \s clear, consistent, 
and confident, in deciding that the power is plainly and evidently not an 
executive power. 



NUMBER II. 



The doctrine which has been examined, is pregnant with inferences 
and consequences, against which no ramparts in the constitution could 
defend the public liberty, or scarcely the forms of republican government. 
Were it once established that the powers of war and treaty are in their 
nature executive ; that so far as they are not by strict construction trans- 
ferred to the legislature, they actually belong to the executive ; that of 
course all powers not less executive in their nature than those powers, if 
not granted to the legislature, may be claimed by the executive ; if grant- 
ed, are' to be taken strictly, with a residuary right in the executive ; or, 
as will hereafter appear, perhaps claimed as a concurrent right by the 
executive ; and no citizen could any longer guess at the character of the 
government under which he lives ; the most penetrating jurist would be 
unable to scan the extent of constructive prerogative. 

Leaving, however, to the leisure of the reader deductions which the 
author, having omitted, might not choose to own, I proceed to the exam- 
ination of one, with which that liberty cannot be taken. 

" However true it may be, (says he,) that the right of the legislature 
" to declare war includes the right of judging, whether the legislature be 
" under obligations to make war or not, it will not follow that the execu- 

* No. 75, written by Mr. Hamilton. 



LETTERS OP HELVIDIUS. 439 

*' tive is i7i any case excluded from a similar right of judging in the ex- 
" ecution of its own functions." 

A material error of the writer, in this application of his doctrine, lies 
in his shrinking from its regular consequences. Had he stuck to his 
principle in its full extent, and reasoned from it without restraint, he 
would only have had to defend himself against his opponents. By yield- 
ing the great point, that the right to declare war, though to be taken 
strictly^ includes the right to judge, whether the nation be under obliga- 
tion to make war or not, he is compelled to defend his argument, not 
only against others, but against himself also. Observe, how he struggles 
in his own toils. 

' He had before admitted, that the tight to declare war is vested in the 
legislature. He here admits, that the right to declare war includes the 
right to judge, whether the United States be obliged to declare war or not. 
Can the inference be avoided, that the executive, instead of having a 
similar right to judge, is as much excluded from the right to judge as 
from the right to declare ? 

If the right to declare war be an exceplion out of the general grant to 
the executive power, every thing included in the right must be included 
in the exception ; and, being included in the exception, is excluded from 
'Ihe grant. 

He cannot disentangle himself by considering the right of the execu- 
tive lo judge as concurrent with that of the legislature : for if the execu- 
tive have a concurrent right to judge, and the right to judge, be included 
in (it is in fact the very essence of) the right to declare, he must go on 
and say, that the executive haS a concurrent right also to declare. And 
then, what will he do with his other admission, that the power to declare 
is an exception out of the executive power ?- 

Perhaps an attempt may be made to creep out of the difficulty through 
the words " in the execution of its functions." Here, again, he must 
equally fail. 

Whatever difficulties may arise in defining the executive authority in 
particular cases, there can be none in deciding on an authority clearly 
placed by the constitution in another department. In this case, the con- 
stitution has decided what shall not be deemed an executive authority ; 
though it hiay not have clearly decided in every case what shall be so 
deemed. The declaring of war is expressly made a legislative function. 
The judging of the obligations to make war, is admitted to be included as 
a legislative function. Whenever, then, a question occurs, whether war 
shall be delared, or whether public stipulations require it, the question 
necessarily belongs to the department to which those functions belong — 
and no other department can be in the execution of its proper functions^ 
if it should undertake to decide such a question. 

There can be no refuge against this conclusion, but in the pretext of a 
concurrent right in both departments to judge of the obligation to declare 
war; and this must be intended by the writer, when he says, "It will 
not follow, that the executive is excluded in any case from a similar right 
of judging," &c. 

As this is the ground on which the ultimate defence is to be made, and 
which must either be maintained, or the works erected on it demolished ; 
it will be proper to give its strength a fair trial. 

It has been .seen that the idea of a concurrent right is at variance with 



440 LETTERS OF HELVIDIUS. 

other ideas, advanced or admitted by the writer. Laying aside, for the 
present, that consideration, it seems impossible to avoid concluding, thai 
if the executive, as such, has a concurrent right with the legislature to 
judge of obligations to declare war, and the right to judge be essentially 
included in the right to declare, it must have the same concurrent right 
to declare, as it has to judge ; and, by another analogy, the same right 
to judge of other causes of war, as of the particular cause found in a 
public stipulation. So that whenever the executive, in the course of its 
functions, shall meet with these cases, it must either infer an equal au- 
thority in all, or acknowledge its want of authority in any. 

If any doubt can remain, or rather if any doubt could ever have arisen, 
which side of the alternative ought to be embraced, it can be with those 
only who overlook or reject some of the most obvious and essential truths 
in political science. 

The power to judge of the causes of war, as involved in the power to 
declare war, is expressly vested, where all other legislative powers are 
vested, that is, in the congress of the United States. It is consequently 
determined by the constitution to be a legislative poroer. Now, omitting 
the inquiry here, in what respects a compound power may be partly leg- 
islative, and partly executive, and accordingly vested partly in the one, 
and partly in the other department, or jointly in both ; a remark used on 
another occasion is equally conclusive on this, that the same power can- 
not belong, in the whole to loth departments, or be properly so vested as 
to operate separately in each. Still more evident is it, that the same spC" 
cific function or act, cannot possibly belong to the two departments, and 
be separately exercisable by each. 

Legislative power may be concurrently vested in different legislative 
bodies. Executive powers may be concurrently vested in different ex- 
ecutive magistrates. In legislative acts the executive may have a par- 
ticipation, as in the qualified negative on the laws. In executive acts, 
the legislature, or at least a branch of it, may participate, as ia the ap- 
pointment to offices. Arrangements of this sort are familiar in theory, 
as well as in practice. But an independent exercise of an executive act 
by the legislature alone, or of a legislative act by the executive alone, one 
or other o/ which must happen in every case where the same act is ex* 
ercisable by each, and the latter of which would happen in the case urged 
by the writer, is contrary to one of the first and best maxims of a well 
organized government, and ought never to be founded in a forced con- 
struction, much less in opposition to a fair one. instances, it is true, may 
be discovered among ourselves, where this maxim has not been faithfully 
pursued ; but being generally acknowledged to be errors, they confirm, 
rather than impeach the truth and value of the maxim. 

It may happen also, that different independent departments, the legis- 
lative and executive, for example, may, in the exercise of their functions, 
interpret the constitution differently, and thence lay claim each to the 
same power. This difference of opinion is an inconvenience not entirely 
to be avoided. It results from what may be called, if it be thought fit, a 
■concurrent right to expound the constitution. But this species of con- 
currence is obviously and radically different from that in question. The 
former supposes the constitution to have given the power to one depart- 
ment only ; and the doubt to be, to which it has been given. The latter 



LETTERS OP HELTIDIUS. 441 

supposes it to belong to both ; and that it may be exercised by either or 
both, according to the course of exigencies. 

A concurrent authority in two independent departments to perform the 
same function with respect to the same thing, would be as awkward in 
practice, as it is unnatural in theory. 

If the legislature and executive have both a right to judge of the obli» 
gations to make war or not, it must sometimes happen, though not at 
present, that they will judge differently. The executive may proceed to 
consider the question to-day ; may determine that the United States are 
not bound to take part in a war, and, in the execution of its junttions^ 
proclaim that determination to all the world. To-morrow, the legislature 
may follow in the consideration of the same subject; may determine 
that the obligations impose war on the United States, and, in the execution 
of its Junctions, enter into a constitutional declaration, express)}' iina-. 
tradicting the constitutional prozJamation, 

In what light does this present the constitution to the people who' es- 
tablished it.'' In what light would it present to the world a nation, thus 
speaking, through two different organs, equally constitutional and authen- 
tic, two opposite languages, en the same subject, and under the #atue ex- 
isting circumstances.'* 

But it is not with the legislative rights alone that this doctrine interferes. 
The rights of the judiciary may be equally invaded. For it is clear that 
if a right declared by the constitution to be legislative, and' actually vest- 
ed by it in the legislature, leaves, notwithstanding, a simiTar right in the 
executive, whenever a case for exercising it occurs, in the course of its 
functions; a right declared to be judiciary and vested in, tfemt department 
may, on the same principle, be assumed and exercised by the executive 
in the course of its functions ; and it is evident that occasions and pre- 
texts for the latter interference maj^ be as frequent as for the former. 
So again the judiciary department may find equal occasions in the exe- 
cution of its functions, for usurping the authorities of the executive ; and 
the legislature for stepping into the jurisdiction of both. And thus all- 
the powers of government, of which a partition is soicarefully made 
among the several branches, would be thrown into absolute, hptchpot, and 
exposed to a general scramble. 

It is time hov/ever for the writer himself to be heard, in defence of 
his text. His comment is in the words following: — 

" If the legislature have a right to make war on the one hand, it is on 
" the other the duty of the executive to preserve peace, till war: is de- 
" dared ; and in fulfilling that duty, it must necessarily possess a right 
" of judging what is the nature of the obligations which the treaties of 
" the country impose on the government; and when, in pursuance of 
" this right, it has concluded that there is nothing inconsistent with' a 
" state of neutrality, it becomes both its province and its duty to enforce 
" the laws incident to that state of the nation. The executive is charged 
" with the execution of all laws, the laws of nations, as well as the 
" municipal law which recognizes and adopts those laws. It is conse- 
" quently bound, by faithfully executing the laws of neutrality, when 
" that is the state of the nation, to avoid giving a cause of war to foreign 
" powers." 

To do full justice to this masterpiece of logicj the reader must have 
the patience to follow it step by step.. 

56 



442 LETTERS OF HELTIDIUS. 

If the legislature have a right to make war on the one hand, it is, on 
the other, the duty of the executive to preserve peace till war is declared. 

It will be observed that here is an explicit and peremptory assertion, 
that it is the duty of the executive to preserve peace till war is declared. 

And in fulfilling that duty it must necessarily possess a right ofjudg' 
ing what is the nature of the obligations which the treaties of the coun- 
try impose on the government : That is to say, in fulfilling the duty to pre- 
serve peaccj it must necessarily possess the right to judge whether peace 
ought to be preserved : in other words, whether its duty should be per- 
formed. Can words express a flatter contradiction ? It is self-evident 
that the duty in this case is so far from necessarily implying the rights 
that it necessarily excludes it. 

And when in pursuance of this right it has concluded that there is 
nothing in them (obligations) inconsistent vjith a state of neutrality, it 
BECOMES both its province and its duty to enforce the laws incident to 
that state of the nation. 

And what if it should conclude that there is something inconsistent ? 
Is it or is it not the province and duty of the executive to enforce the 
same laws ? Say it is, you destroy the right to judge. Say it is not, 
yoi\ cancel the duty to preserve peace, till war is declared. 

Take this sentence in connexion with the preceding, and the contra- 
dictions are multiplied. Take it by itself, and it makes the right to judge 
and conclude, whether war be obligatory, absolute and imperative ; and 
the duty to preserve peace, subordinate and conditional. 

It will have been remarked by the attentive reader, that the term peace 
in, the first clause has been silently exchanged in the present one, for the 
term neutrality. Nothing however is gained by shifting the terms. 
Neutrality means peace, with an allusion to the circumstance of other 
nations being at war. The term has no reference to the existence or 
non-existence of treaties or alliances between the nation at peace and 
the nations at war. The laws incident to a state of neutrality, are the 
laws incident to a state of peace, with such circumstantial modifications 
only as are required by the new relation of the nations at war : until war 
therefore be duly authorised by the United States, they are as actually 
neutral when other nations are at war, as they are at peace (if such a 
distinction in the terms is to be kept up) when other nations are not at 
war. The existence of eventual engagements which can only take ef- 
fect on the declaration of the legislature, cannot, without that declaration, 
change the actual state of the country, any more in the eye of the ex- 
ecutive than in the eye of the judiciary department. The 'laws to be 
the guide of both, remain the same to each, and the same to both. 

Nor would more be gained by allowing the writer to define, than to 
shift the term neutrality. For suppose, if you please, the existence of 
obligations to join in war to be inconsistent with neutrality, the question 
returns upon him, what laws are to be enforced by the executive, until 
effect shall be given to those obligations by the declaration of the legis- 
lature ? Are they to be the laws incident to those obligations, that is, 
incident to war ? However strongly the doctrines or deductions of the 
writer may tend to this point, it will not be avowed. Are the laws to be 
enforced by the executive, then, in such a state of things, to be the same 
as if no such obligations existed ? Admit this, which you must admit, if 
you reject the other alternative, and the argument lands precisely where 



LETTERS OF HELVIDIUS. 443 

at embarked — in the position, that it is the absolute duty of the executive 
ia all cases to preserve peace till war is declared, not that it is " to become 
the province and duty of the executive," after it has concluded that there 
is nothing in those obligations inconsistent with a state of peace and neu- 
trality. The right to judge and conclude therefore, so solemnly main- 
tained in the text, is lost in the comment. 

We shall see whether it can be reinstated by what follows : — 

The executive is charged with the execution of all laios, the laios of 
nations as well as the municipal law, vjJiich recognizes and adopts those 
laios. It is consequently bound, by faithfully executing the laws of neu- 
trality when that is the state, of the nation, to avoid giving cause of war 
to foreign powers. 

The first sentence is a truth, but nothing to the point in question. The 
last is partly true in its* proper meaning, but totally untrue in the mean- 
ing of the writer. That the executive is bound faithfully to execute the 
laws of neutrality, whilst those laws continue unaltered by the competent 
authority, is true ; but not for the reason here given, to wit, to avoid 
giving cause of war to foreign powers. It is bound to the faithful ex- 
ecution of these as of all other laws internal and external, by the na- 
ture of its trust and the sanction of its oath, even if turbulent citizens 
should consider its so doing as a cause of war at home, or unfriendly 
nations should consider its so doing as a cause of war abroad. The 
■duty of the executive to preserve external peace, can no more suspend 
the force of external laws, than its duty to preserve internal peace can 
suspend the force of municipal laws. 

. It is certain that a faithful execution of the laws of neutrality may 
tend as much in some cases, to incur war from one quarter, as in others 
to avoid war from other quarters. The executive must nevertheless exe- 
cute the laws of neutrality whilst in force, and leave it to the legislature 
to decide, whether they ought to be altered or not. The executive has 
no other discretion than to convene and give information to the legis- 
lature on occasions that may demand it ; and whilst this discretion is 
duly exercised, the trust of the executive is satisfied, and that depart- 
ment is not responsible for the consequences. It could not be made re- 
sponsible for them without vesting it with the legislative as well as with 
the executive trust. 

These remarks are obvious and conclusive, on the supposition that the 
expression, " laws of neutrality," means simply what the words import, 
and what alone they cafti mean, to give force or color to the inference of 
the writer from his own premises. As the inference itself however, in 
its proper meaning, does not approach towards his avowed object, which 
js to work out a prerogative for the executive to judge, in common with 
the legislature, whether there be cause of war or not in a public obliga- 
tion, it is to be presumed that " in faithfully executing the laws of neu- 
trality," an exercise of that prerogative was meant to be included. On 
this supposition the inference, as will have been seen, does not result 
from his own premises, and fias b6en already so amply discussed, and, 
it is conceived, so clearly disproved, that not a word more can be ne- 
eessary on this branch of his argument. 



444 LETTERS OF HELVIDIUS. 



NUMBER III. 

In order to give color to a right' in the executive to exercise the legis- 
lative power of judging, whether there be a cause of war in a public 
stipulation — two arguments are subjoined by the writer to that last ex- 
amined. 

The first is simply this : — "It is the right and duty of the executive 
" to judge of and interpret those articles -of our treaties which give to 
" France particular privileges, in order to tlve, enforcement of those priv- 
" ileges,'''' from which it is stated, as a necessary consequence, that the 
executive has certain other rights, among which is the right in question. 

This argument is ainiswered by a very obvious distinction. The first 
right is essential to the execution of the treaty, as a laio in operation^ and . 
interferes with no right vested in another department. The second, 
viz., the right in question, is not essential to the execution of the treaty, 
or any other law : on the contrary, the article to which the right is ap- 
plied cannot, as has been shown, from the very nature of it, be in opera- 
tion as a law, without a previous declaration of the legislature ; and all 
the laws to be enforced by the' executive remain, in the meantime, 
precisely the same, whatever be the disposition or judgment of the ex- 
ecutive. This second right would also interfere with a right acknowl- 
edged to be in the legislative department. \ 

If nothing else could suggest this distinction to the writer, he ought 
to have been reminded of it by his own words, " in order to the enfcrce- 
" ment of those privileges." — Was it in order to the enforcement of the 
article of guaranty, that the right is ascribed to the executive .? 

The other of the two arguments reduces itself into the' following 
form: — the executive has the right, to receive public ministers; this 
right includes the right of deciding, in the case of a revolution, whether 
the new government, sending the minister, ought to be recognized, or 
not ; and this, again, the right to give or refuse operation to pre-existing 
treaties. 

The power of the legislature to declare war and judge of the causes 
for declaring it, is one of the most express and explicit parts of the con- 
stitution. To endeavor to abridge or affect it by strained inferences and 
by hypothetical or singular occurrences naturally warns the reader of 
some lurking fallacy. 

The vv'ords of the constitution are, — " He (the president) shall receive 
" ambassadors, other public ministers, and consuls." I shall not under- 
take to examine, what would be the precise extent and effect of this 
function in various cases which fancy may suggest, or which time may 
produce. It will be more proper to observe, in general, and every can- 
did reader will second the observation, that little, if any thing, more was 
intended by the clause, than to provide for a particular mode of commu- 
nication, almost grown into a right among modern nations ; by pointing 
out the department of the government, most proper for the ceremony of 
admitting public ministers, of examining their credentials, and of authen- 
ticating their title to the privileges annexed to their character by the law 
of nations. This being the apparent design of the constitution, it would 
be highly improper to magnify the function into an important preroga- 
tive, even where no rights of other departments could be affected by it. 



LETTERS OP^ HELYIDIUS. 445 

To show that the view here given of the clause is not a new construc- 
tion, invented or strained for a particular occasion — I will take the lib- 
erty of recurring to the cotemporary work already quoted, which con- 
tains the obvious and original gloss put on this part of the constitution by 
its friends and advocates. 

" The president is also to be authorized to receive ambassadors and 
" other public ministers. This, though it has been a rich theme of de- 
" ciamation, is more a matter of dignity than of authority. It is a cir- 
" cumstance, that will be without consequence in the administration of 
" the government, and it is far more convenient that it should be arrang- 
" ed in this manner, than that there should be a necessity for convening 
" the legislature or one of its branches upon every arrival of a foreign 
" minister, though it were merely to take the place of a departed prede- 
" cessor." Fed. p. 319.* 

Had it been foretold in the year 1788, when this work was published, 
that before the end of the year 1793, a writer, assuming the merit of 
being a friend to the constitution, would appear, and gravely maintain, 
that this function, which was to be without consequence in the administra- 
tion of the government, might have the consequence of deciding on the 
validity of revolutions in favor of liberty, " of putting the United States 
" in a condition to become an associate in war," — nay, " of laying the 
" legislature under an obligation of declaring war^'' what would have 
been thought and said of so visionary a prophet .'' 

The moderate opponents of the constitution would probably have dis- 
owned his extravagance. By the advocates of the constitution, his pre- 
diction must have been treated as " an experiment on public credulity, 
" dictated either by a deliberate intention to deceive, or by the overflow- 
" ings of a zeal too intemperate to be ingenious." 

But how does it follow from the function to receive ambassadors and 
other public ministers, that so consequential a prerogative may be exer- 
cised by the executive .'' When a foreign minister presents himself, two 
questions immediately arise : — Are his credentials from the existing and 
acting government of his country .'' Are they properly authenticated } 
These questions belong of necessity to the executive ; but they involve 
no cognizance of the question, whether those exercising the government 
have the right along with the possession. This belongs to the nation, 
and to the nation alone, on whom the government operates. The ques- 
tions before the executive are merely questions of fact ; and the execu- 
tive would have precisely the same right, or rather be under the same 
necessity of deciding them, if its function was simply to receive without 
any discretion to reject public ministers. It is evident, therefore, that if 
the executive has a right to reject a public minister, it must be founded 
on some other consideration than a change in the government, or the 
newness of the government ; and consequently a right to refuse to ac- 
knowledge a new government cannot be implied by the right to refuse a 
public minister. 

It is not denied that there may be cases in which a respect to the gen- 
eral principles of liberty, the essential rights of the people, or the over- 
ruling sentiments of humanity, might require a government, whether new 
or old, to be treated as an illegitimate despotism. Such are in fact dis- 
cussed and admitted by the most approved authorities. But they are great 

* No. 69, written by Mr. Hamilton. 



^ 446 LETTERS OF HELVIDIUS. 

and extraordinary cases, by no means submitted to so limited an organ 
of the national will as the executive of the United States ; and certainly 
not to be brought by any torture of words, within the right to receive 
ambassadors. 

That the authority of the executive does not extend to a question, 
whether an existing government ought to be recognized or not, will still 
more clearly appear from an examination of the next inference of the 
writer, to wit : that the executive has a right to give or refuse activity 
and operation to pre-existing treaties. 

If there be a principle that ought not to be questioned within the Unit- 
ed States, it is that every nation has a right to abolish an old government 
and establish a new one. This principle is not only recorded in every 
public archive, written in every American heart, and sealed with the 
blood of a host of American martyrs ; but is the only lawful tenure by 
which the United States hold their existence as a nation. 

It is a principle incorporated with the above, that governments are es- 
tablished for the national good, and are organs of the national will. 

From these two principles results a third, that treaties formed by the 
government, are treaties of the nation, unless otherwise expressed in the 
treaties. 

Another consequence is', that a nation, by exercising the right of 
changing the organ of its will, can neither disengage itself from the ob- 
ligations, nor forfeit the benefits of its treaties. This is a truth of vast 
importance, and happily rests with sufficient firmness, on its own author- 
ity. To silence or prevent cavil, I insert, however, the following extracts ; 
" Since then such a treaty, (a treaty not personal to the sovereign) di- 
" rectly relates to the body of the state, it subsists though the form of the 
" republic happens to be changed*, and though it should be even trans- 
" formed into a monarchy — for the state and the nation are always 
" the same, whatever changes are made in the form of the government, 
" and the treaty concluded with the nation, remains in force as long as 
" the nation exists." — Vattel, B. II, § 85. " It follows that as a treaty, 
" notwithstanding the change of a democratic government into a monar- 
" chy, continues in force with the new king, in a like manner, if a mon- 
" arcliy becomes a republic, the treaty made with the king does not ex- 
" pire on that account, unless it was manifestly personal." — Burlam. part 
IV, c. IX, § 16, ^ 6. 

As a change of government then makes no change in the obligations 
or rights of the party to a treaty, it is clear that the executive can have 
no more right to suspend or prevent the operation of a treaty, on account 
of the change, than to suspend or prevent the operation, where no such 
change has happened. Nor can it have any more right to suspend the 
operation of a treaty in force as a law, than to suspend the operation of 
any other law. 

The logic employed by the writer on this occasion, will be best under- 
stood by accommodating to it the language of a proclamation, founded 
on the prerogative and policy of suspending the treaty with France. 

Whereas a treaty was concluded on the day of between 

the United States and the French nation, through the kingly government, 

which was then the organ of its will ; and whereas the said nation hath 

' since exercised its right (nowise abridged by the said treaty) of changing 

the organ of its will, by abolishing the said kingly government, as incon- 



LETTERS OF HELVIDIUS. 447 

sistent with the rights and happiness of the people, and establishing a re- 
pubhcan in Ueu thereof, as most favorable to the public happiness, and 
best suited to the genius of^ a people become sensible of their rights and 
ashamed of their chains : and whereas, by the constitution of the United 
States, the executive is authorized to receive ambassadors, other public 
ministers, and consuls : and whereas a public minister, duly appointed 
and commissioned by the new republic of France, hath arrived and pre- 
sented himself to the executive, in order to be received in his proper 
character, now be it known, that by virtue of the said right vested in the 
executive to receive ambassadors, other public ministers and consuls, and 
of the rights included therein, the executive hath refused to receive the 
said minister from the said repuSlic,and hath thereby caused the activity 
and operation of all treaties with the French nation, hitherto in force as 
supreme laws of the land, to be suspended until the executive, by taking 
off the said suspension, shall revive the same ; of which all persons con- 
cerned are to take notice at their peril. 

The writer, as if beginning to feel that he was grasping at more than 
he can hold, endeavors all of a sudden to squeeze his doctrine into a 
smaller size, and a less vulnerable shape. The reader shall see the op- 
eration in his own words. 

" Aod where a treaty antecedently exists between the United States 
" and such nation, [a nation whose government has undergone a revo- 
" lution,] that right [the right of judging, whether the new rulers ought 
" to be recognized or not] involves the power of giving operation or not 
" to such treaty. For until the new government is acknowledged? the 
" treaties between the nations as far at least as regards puhlic rights, 
" are of course suspended. 

This qualification of the suspending power, though reluctantly and in- 
explicitly made, was prudent for two reasons : first, because it is pretty 
evident \hat private rights, whether of judiciary or executive cognizance, 
may be carried into effect without the agency of the foreign govern- 
ment ; and therefore would not be suspended, of course, by a rejection 
of that agency : secondly, because the judiciary, being an independent 
department, and acting under an oath to pursue the law of treaties as 
the supreme law of the land, might not readily follow the execuUve ex- 
ample ; and a right in one expositor of treaties, to consider them as not 
in force, whilst it woula be the duty of another expositor to consider 
them as in force, would be a phenomenon not so easy to be explained. 
Indeed, as the doctrine stands qualified, it leaves the executive the right 
of suspending the law of treaties in relation to rights of one description, 
without exempting it from the duty of enforcing it in relation to rights 
of another description. 

But the writer is embarked in so unsound an argument, that he does 
not save the rest of his int'erence by this sacrifice of one half of it. It 
is not true that all public rights are of course suspended by a refusal to 
acknowledge the government, or even by a suspension of the govern- 
ment. And in the next place, the right in question does not follow from 
the necessary suspension of public rights, in consequence of a refusal to 
acknowledge the government. 

Public rights are of two sorts : those which require the agency of gov- 
ernment ; those which may be carried into effect without that agency. 
As public rights are the rights of the nation, not of the governmentj 



448 LETTERS OF HELVIDIUS. 

it is clear that wherever they can be made good to the nation, without 
the office of government, they are not suspended by the want of an ac* 
knowledged government, or even by the want of an existing govern- 
ment ; and that there are important rights of this description, will be 
illustrated by the following case. 

Suppose, that after the conclusion of the treaty of alliance between 
the United States and France, a party of the enemy had surprised and 
put to death every member of congress ; that the occasion had been 
used by the people of America for changing the old confederacy into 
such a government as now exists, and that in the progress of this revolu- 
tion, an interregnum had happened ; suppose further, that during this in- 
terval, the Slates of South Carolina and Georgia, or any other parts of the 
United States^ had been attacked, and been put into evident and imminent 
danger of being irrecoverably lost, without the interposition of the French 
arms : is it not manifest, that as the treaty is the treaty of the United 
States, not of their government, the people of the United States could 
not forfeit their right to the guaranty of their territory by the accidental 
suspension of their government ; and that any attempt, on the part of 
France, to evade the obligations of the treaty, by pleading the suspen- 
sion of government, or by refusing to acknowledge it, would justly have 
been received with universal indignation, as an ignominious perfiiy ? 

With respect to public rights that cannot take effect in favor of a na- 
tion without the agency of its government, it is admitted that they are 
suspended of course where there is no government in existence, and also 
by a refusal to acknowledge an existing government. But no inference 
in favor of a right to suspend the operation of treaties, can be dravvfi 
from either case. Where the existence of the government is suspended, 
it is a case of necessity ; it would be a case happening without the act 
of the executive, and consequently^could prove nothing for or against 
the right. 

In the other case, to wit, of a refusal by the executive to recognize an 
existing government, however certain it may be, that a suspension of 
some of the public rights might ensue ; yet it is equally certain, that the 
refusal would be without right or authority ; and that no right or author- 
ity couW be implied or produced by the unauthorized act. If a right to 
do whatever might bear an analogy to the necessary consequence of what 
was done without right, could be inferred from the analogy, there would 
be no other limit to power than the limit to its ingenuity. 

It is no answer to say that it may be doubtful whether a govern- 
ment does or does not exist ; or doubtful which may be the existing and 
acting government. The case stated by the writer is, that there are ex- 
isting rulers ; that there is an acting government 5 l)Ut that they are neii} 
rulers ; and that it is a neit) government. The full reply, however, is to 
repeat what has been already observed ; that questions of this sort are 
mere questions of fact ; that as such only, they belong to the executive ;. 
that they would equally belong to the executive, if it was tied down to 
the reception of public ministers, without any discretion to receive or 
reject them : that where the fact appears to be, that no government ex- 
ists, the consequential suspension is independent of the executive ; that 
where the fact appears to be, that the government does exist, the exec- 
utive must be governed by the fact, and can have no right or discretion 
on account of the date or farm of the government, to refuse to acknowl- 



LETTERS OF HELVIDIUS. ♦ 449 

edge it, either by rejecting its public minister, or by any other step taken 
on that account. If it does refuse on that account, the refusal is a wrong- 
ful act, and can neither prove nor illustrate a rightful power. 

I have spent more time on this part of the discussion than may appear 
to some to have been requisite. But it was considered as a proper op« 
portunity for pi^senting some important ideas, connected with the gen- 
eral subject, and it may be of use in showing how very superficially, as 
well as erroneously, the writer has treated it. 

In other resftects, so particular an investigation was less necessary. 
For allowing it to be, as contended, that a suspension of treaties might 
happen from a consequential operation of a right to receive public min- 
jstere, which is an express right vested by the constitution ; it could be 
no proof, that the same or a similar effect could be produced by the di' 
reel operation of a constructive power. 

Hence the embarrasments and gross contradictions of the writer in 
defining, and applying his ultimate inference from the operation of the 
(executive power with regard to public ministers. 

At first it exhibits an " important instance of the right of the execu* 
*' tive to decide the obligation of the nation with regard to foreign nations." 

Rising from that, it confers on the executive, a right '• to put the Upit- 
*' ed States in a condition to become an associate in war.^' 

And at its full height, it authorizes the executive " to lay the legislature 
*' under an ohligation of declaring war." 

From this towering prerogative, it suddenly brings down the executive 
to the right af " consequentially affecting the proper or improper exer- 
*' else of the power of the legislature to declare war.'" 

And then, by a caprice as unexpected as it is sudden, it espouses the 
cause of the legislature ; rescues it from the executive right " to lay it 
*' under an oMigation of declaring war ^" and asserts it to be " free to 
■" perform its otcn duties according to its oion sense of them," without 
any other control than what it is liable to, in every other legislative act. 

The point at which it finally seems to rest, is, that " the executive, in 
*' the exercise of its constitutional poioers, may establish an antecedent 
"' state of things, which ought to weigh in the legislative decisions ;" a 
prerogative which will import a great deaf, or nothing, according to the 
handle by which you take it ; and which at the same time, you can take 
hy no handle that does not clash with some inference preceding. 

If " by weighing in the legislative decisions" be meant having an in- 
Jluence on the expediency of this or that decision, in the opinion of the 
legislature ; this is no more than what every antecedent slate of things 
ought to have, from whatever cause proceeding ; whether from the use 
or abuse of constitutional powers, or from the exercise of constitutional 
or assumed powers. In this sense, the power to establish an antecedent 
state of things is not contested. But then it is of no use to the writer, 
and is also in direct contradiction to the inference, tiiat the executive may 
*' lay the legisiature under an obligation to decide in favor of imir^'' 

If the meaning be as is implied by ^the force of the terms " constitu- 
*' tional powers," that the antecedent state of things produced by the ex- 
ecutive, ought to have a constitutional weight with the legislature ; or, in 
plainer words, imposes a constiiiitional obligation on the legislative decis- 
ions ; the writer will not only have to combat the arguments by which 
such a prerogative has been disproved ; but to reconcile it with his last 

51 • 



450 ^ LETTERS OF HELVIDIUS. 

concession, that " the legislature is free to perform its duties according 
" to its own sense of them." He must show that the legislature is, at 
the same time constitutiGnally free to pursue its oion judgment^ and tow- 
stituiionally bound by the judgment of the executive. 



NUMBER IV. 



The last paper's completed the view proposed to h-e taken of the argu- 
ments in support of the new and aspiring doctrine, which ascribes to the 
executive the prerogative of judging and deciding, whether there be caus- 
es of war or not, in the obligations of treaties; notwithstanding the ex- 
press provision in the constitution, by which the legislature is made the 
organ of the national will, on questions whether there be or be not a cause 
for declaring war. If the answer to these arguments has imparted the 
conviction which dictated it, the reader will have pronounced that they are 
generally superficial, abounding in contradictions, Dever in the least de- 
gree conclusive to the main point, and not unfrequently conclusive against 
the writer himself; whilst the doctrine — that the powers of treaty and 
war, are in their nature executive powers, which forms the basis of those 
arguments, is as indefensible and as dangerous as the particular doctrine 
to which they are applied, 

Btit it is not to be forgotten that these doctrines, though ever so clear- 
ly disproved, or ever so weakly defended, remain before the public a 
striking monument of the principles and viev/s which are entertained and 
propagated in the community. 

It is also to be remembered, that however the consequences flowing 
'from such premises, may be disavowed at this time, or by this individual, 
we are to regard it as morally certain, that in proportion as the doctrine& 
• make their way into the creed of the government, and the acquiescence 
of the public, every power that can be deduced from them, will be de- 
duced, and exercised sooner or later by those who may have an interest 
in so doing. The character of human nature gives this salutary warn- 
ing to every sober and reflecting mind. And the history of government 
in all its forms and in every period of time, ratifies the danger. A peo-' 
pie, therefore, who are so happ}- as to possess the inestimable blessing 
of a free and defined constitution, cannot be too watchful against the in- 
troduction, nor too critical in tracing the consequences, of new princi- 
ples and new constructions, that may ren">ove the landmarks of power. 

Should the prerogative which has been examined, be allowed, in its 
most limited sense, to usurp the public countenance, the interval would 
probably be very s-hort, before it would be heard from some quarter or 
other, that the prerogative either amounts to nothing, or means a right to 
judge and conclude that the obligations of treaty impose war, as well as 
that they permit peace ; that it is fair reasoning, to say, that if the pre- 
rogative exists at all, an operative rather than an inert charactej' ought to- 
be given to it. 

In support of this conclusion, there would be enough to echo, " thai 
" the prerogative in this active sense, is connected with the executive irj 
" various capacities.. ...as the organ of intercourse between the natioD 



LETTERS OF HELVIDIUS. 451 

*' and foreign nations as the interpreter of national treaties" (a viola- 
tion of whicli may be a cause of .war) " as tliat power which is charg- 

" ed with the execution of the laws, of which treaties make a part as 

" that power, which is charged with the command and applicatioii of the 
'-'public forced 

With additional force, it might be said, that the executive is as much 
the executor as the interpreter of treaties ; that if by virtue of the first 
character, it is to judge of the obligations of treaties, it is, by virtue of the 
second^ equally authorized to carry those obligations into effect. Should 
there occur, for example, a casus foederis., claiming a military co-opera- 
tion of the United States, and a military force should happen to be under 
the command of the executive, it must have the same right, as executor 
of public treaties to employ the public force, as it has in quality of in- 
terpreter of public treaties to decide, v/hether it ought to be ein-ployed. 

The case of a treaty of peace would be an auxiliary to comments of 
this sort : it is a condition, annexed to every treaty, that an infraction 
even of an important article, on one side, extinguishes the obligations on 
the other : and the immediate consequence of a dissolution of a treaty 
of peace is a restoration of a state of war. If the executive is " to de- 

" cide on the obligation of the nation with regard to foreign nations" 

" to pronounce the existing condition [in the sense annexed by the writ- 
" er] of the nation with regard to them ; and to admonish the citizens 
" of their obligations and duties, as founded upon that condition of 
" things"...,." to judge what are the reciprocal rights and obligations of 

" the United States, and of all and each of the powers at war;" and, 

that if the executive, moreover, possesses all powers relating to war, ?iot 
strictly within the power to declare ivar., which any pupil of poUtical 
casuistry could distinguish from a mere relapse into a war that had been 
declared : with this store of materials, and the example given of the use 
to be made of them, would it be difficult to fabricate a power in the ex- 
ecutive to plunge the' nation into war, whenever a treaty of peace might 
happen to be infringed ? 

But if any difficulty should arise, there is another mode chalked out, 
by which the end might clearly be bTought about, even without the vio- 
lation of the treaty of peace ; especially if the other party should hap- 
pen to change its government at the crisis. The executive could sus- 
pejid the treaty of peace by rejusing to receive an ambassador from the 
new government ; and the state of war emerges of course. 

This is a sample of the use to v/hich the extraordinary publication we 
are reviewing might be turned. Some of the inferences could not be 
repelled at all. And the least regular of them must go smoothly down 
with those who had swallowed the gross sophistry which wrapped up the 
original dose. 

Every just viov/ that can be taken of this subject, admonishes the pub- 
lic of the necessity of a rigid adherence to the sinaple, the received, and 
the fundamental doctrine of the constitution, that the power to declare 
war, including the power of judging of the causes of war, is jully and 
exclusively vested in the legislature ; that the executive has no right, in 
any case to decide the question, whether there is or is not cause for de- 
claring war ■; that the right of convening and informing congress, when- 
ever such a question seems to call for a decision, is all the right which 
the constitution has deemed requisite or proper ; and that for such. 



452 LETTERS OF HELVIDIUS. 

more than for any other contingency, this right was specialty given to 
the executive. 

In no part of the constitution is more wisdom to be found, than in the 
clause which confides the question of war or peace to the legislature, 
and not to the executive department. Beside the objection to such a 
mixture of heterogeneous powers, the trust and the temptation would be 
too great for any one man ; not such as nature may offer as the prodigy 
of many centuries, but such as may be expected in the oi'dinary succes- 
sions of magistracy. War is in fact the true nurse of executive aggran- 
dizement. In war, a physical force is to be created ; and it is the exec- 
utive will which is to direct it. In war the public treasures are 'to be 
unlocked ; and it is the executive hand which is to dispense them. In 
war, the honors and emoluments of office are to be- multiplied ;. and it is 
the executive patronage under which they are to be enjoyed. It is in 
war, finally, that laurels are to be gathered ; and it is the executive brow 
they are to encircle. The strongest passions and most dangerous weak- 
nesses of the human breast ; ambition, avarice, vanity, the honorablti or 
venial love of fame, are all in conspiracy against the desire and duty of 
peace. 

Hence it has grown into an axiom that the executive is the department 
of power most distinguished by its propensity to war : hence, it is the 
practice of all states, in proportion as they are free, to disarm this pro- 
pensity of its influence. 

As the best praise then that can be pronounced on an executive mag- 
istrate, is, that he is the friend of peace ; a praise that rises in its value 
as there may be a known capacity to shine in war : so it must be one of 
the most sacred duties of a free people, to mark the first omen in the 
society, of principles that may stimulal6 the hopes of other magistrates 
of another propensity, to intrude into questions ort which its gratification 
depends. If a free people be a wise people also, they will not forget 
that the danger of surprise can never be so great, as when the advocates 
for the prerogative of war can sheathe it in a symbol of peace. 

The constitution has manifested a similar prudence in refusing to the 
executive the sole power of making peace. The trust in this instance, 
also, would be too great for the wisdom, and the temptations too strong 
for the virtue, of a single citizen. The principal reasons on which the 
constitution proceeded in its regulation of the power of treaties, including 
treaties of peace, are so aptly furnished by the work already quoted more 
than once, that I shall borrow another cominent from that source. 

'■'^•However proper or safe it may be in a government where the exec- 
" utive magistrate is an hereditary monarch, to commit to him the entire 
"^ power of making treaties, it would be utterly unsafe and improper to 
" entrust that power to an elective magistrate of four years' duration. 
'" It has been, remarked upon another occasion, and the remark is un- 
" questionably just, that an hereditary monarch, though often the oppres- 
" sor of his people, has personally too much at stake in the government 
" to be in any material danger of being corrupted by foreign powers : 
" but tha,t a man raised from the station of a private citizen to the rank 
" of chief magistrate, possessed of but a moderate or slender fortune,. 
" and looking forward to a period not very remote, when he may probably 
" be obliged to return to the station from which he was taken, might 
'•'' sometimes be under temptations to; sacrifice his duty to his interest^ 



LETTERS OF HELVIDIUS. 453 , 

" which it would require superlative virtue to withstand. An avaricious 
" man might be tempted to betray the interests of the state to the acqui- 
" sition of" weakh. An ambitious man might make his own aggrandize- 
" ment, by the aid of a foreign power, the price of his treachery to his 
"constituents. The history of human conduct does not warrant that ex- 
" alted opinion of human virtue, which would make it wise in a nation 
" to commit interests of so delicate and momentous a kind, as those 
" which concern its intercourse with the rest of the world to the sole dis- 
" posal of a magistrate created and circumstanqed as would be a presi- 
" dent of the United States." Federalist, p. 344.* 

I shall conclude this paper and this bi'anch of the subject, with two re- 
flections, which naturally arise from this view of the constitution. 

The first is, that as the personal interest of an hereditary monarch in 
the government, is the 07ily security against the temptation incident to 
the commitment of the delicate and momentous interests of the nation, 
which concerns its intercourse with the rest of the world, to the disposal 
of a single magistrate, it is a plain consequence, that every addition that 
nicfy be made to the sole agency and influence of the executive, in the 
intercourse of the nation with foreign nations, is an increase of the dan- 
gerous temptation to which an elective and temporary magistrate is ex- 
posed ; and an argument and advance towards the security afforded by 
the personal interests of an hereditary magistrate. 

Secondly, as the constitution has not permitted the executive singly to 
conclude or judge that peace ought to be made, it might he inferred from 
that circumstance alone, that it never meant to give it authority, singly, 
to judge and conclude that war ought not to be made. The trust would 
be precisely similar and equivalent in the two cases. The right to say 
that war ought not to go on, would be no greater than the right to say 
that war ought not to begin. Every danger of error or corruption, inci- 
dent to such a prerogative in one case, is incident to it in the other. If 
the constitution therefore has deemed it unsafe or improper in the one 
case, it must be deemed equally so in the other case. 



NUMBER V. 



Having seen that the executive has no constitutional right to interfere 
in any question, whether there be or be not a cause of war, and the ex- 
tensive consequences flowing from the doctrines on which such a claim 
has been asserted ; it remains to be inquired, whether the writer is better 
warranted in the fact which he assumes, namely, that the proclamation of 
the executive has undertaken to decide the question whether there, be a 
cause of war or not, in the article of guaranty between the United States 
and France, and in so doing has exercised the right which is claimed for 
that department. 

Before 1 proceed to the examination of this point, it may not be amiss 
to advert to the novelty of the phraseology, as well as of the doctrines 
espoused by this writer. The source from which the former is evidently 
borrowed, may enlighten our conjectures with regard to the source of 

* No. 73, written by Mr. Hamiltcax. 



454 LETTERS OF HELVIDIUS. 

the latter. It is a just observation, also, that words have often a gradual 
influence on ideas, and, when used in an improper sense, may cover fal- 
lacies which would not otherwise escape detection. 

I allude particularly to his application of the term government to the 
executive authority alone. The proclamation is a " manifestation of the 
'' sense of the gover7imenty " Why did not the government wait," &c. 
" The policy ori the part of the government of removing all doubt as to 
" its oivn disposition.''''* " It was of great importance, that our citizens 
" should understand as early as possible the opinion entertained by the 
" government,'''' &c. " If, in addition to the rest, the early manifestation 
" of the vieivs of the government had any eflect in fixing the public 
'■'■opinion,'''' &c. The reader will probably be struck with the reflection, 
that jf the proclamation really possessed the character, and was to have 
the effects, here ascribed to it, something more than the authority of the 
government., in the writer's sense of government, would have been a 
necessary sanction to the act ; and if the term " government" be remov- 
ed, and that of " president" substituted, in the sentences quoted, the jus- 
tice of the reflection will be felt with peculiar force. But I remark only 
on the singularit)^ of the style adopted by the writer, as showing either 
that the phraseo'ogy of a foreign government is more familiar to him 
than the phraseology proper to our own, or that he wishes to propagate a 
familiarity of the former in preference to the latter. I do not know what 
degree of disapprobation others may think due to this inrtovation of lan- 
guage ; but I consider it as far above a trivial criticism, to observe that it 
is by no means unworthy of attention, whether viewed with an eye to 
its probable cause, or its apparent tendency. " The" government" un- 
questionably means, in the United States, the whole government, not the 
executive part, either exclusively or pre-eminently ; as it may do in a 
monarchy, where the splendor of prerogative eclipses, and the machiner)'' 
of influence directs, every other part of the government. In the former 
and proper sense, the term has hitherto been used in official proceedings, 
in public discussions, and in private discourse. It is as short and as easy, 
and less liable to misapprehension, to say the executive, or the president, 
as to say the government. In^ a word, the new dialect could not proceed 
either from necessity, conveniency, propriety or perspicuity ; and being 
in opposition to common usage, so marked a fondness for it justifies the 
notice "here taken of it. It shall no longer detain me, however, from the 
more impoi'tant subject of the present paper. 

I proceed therefore to observe, that as a " proclamation," in its ordi- 
nary use, is an address to citizens or subjects only ; as it is always un- 
derstood to relate to the law actually in operation, and to be an act pure- 
ly and exclusively executive ; there can be no implication in the natne or 
the for7n of such an instrument, that it was meant principally for the in- 
formation of foreign nations ; far less that it related to an eventual stipu- 
lation on the subject acknowledged to be within the legislative province. 

When the writer therefore undertook to engraft his new prerogative of 
the proclamation, by ascribing to it so unusual, and unimplied a mean- 
ing, it was evidently incumbent on him to show, that the text of the in- 
strument could not be satisfied by any other construction than his own. 

* The writer ought not in the same paper, No. VII, to have said, " Had the 
" president announced his own disposition he would have been chargeable with 
" egotism, if not presurn'ption." 



LETTERS OF HELVIDIUS. 455 

Has he done this ? No. What has he done ? He has called the pro- 
clamalion a proclamation of neutrality ; he has put his own arbitrary 
meaning on that phrase, and has then proceeded in his arguments and 
his inferences, with as much confidence, as if no question was ever to 
he asked, whether the term, " neutrality," be in the proclamation ; or 
whether, if there, it could justify the use he makes of it. 

It has appeared from observations already made that if the term " neu- 
trality" was in the proclamation, it could not avail the writer in the pres- 
ent discussion ; but the fact is, no such term is'to be found in it, nor any 
other term of a meaning equivalent to that, in which the term neutrality 
is used by him. 

There is the less pretext in the present case, for hunting after any la- 
tent or extraordinary object, because an obvious and legal one is at hand, 
to satisfy the occasion on which the proclamation issued. The existence 
of war among several nations with which the United States have an ex- 
tensive intercourse ; the duty of the executive to preserve peace by en- 
forcing its laws, whilst those laws continued in force ; the danger that in- 
discreet citizens might be tempted or surprised by the crisis, into unlaw- 
ful proceedings, tending to involve the United States in a war, which the 
competent authority miglit decide them to be at liberty to avoid, and which 
if they should be judged not at liberty to avoid, the other party to the 
eventual contract^ might be willing not to impose on them ; these surely 
might have been sufficient grounds for the measure pursued by the exec- 
utive ; and being legal and rational grounds, it would be wrong, if there 
be no necessity to look beyond them. 

If there be any thing in the proclamation of v/hich the writer could 
have made a handle, it is the part which cleclares, xhe' disposition, the 
duty, and the interest of the United States, in relation to the war exist- 
ing in Europe. As the legislature is the only competent and constitution- 
al organ of the will of the nation ; that is, of its disposition, its duty, and 
its interest, in relation to a commencement of war, in like manner as the 
president and senate jointly, not the president alone, are in relation to 
peace, after war has been commenced....! will not dissemble my wish 
that a language less exposed to criticism had been preferred ; but taking 
the expressions, in the sense of the writer himself, as analogous to the lan- 
guage which might be proper, on the reception of a public minister, or 
any similar occasion, it is evident that his construction can derive no suc- 
cor even from this source. 

■ If the proclamation, then, does not require the construction which this 
writer has taken the liberty of putting on it ; I leave it to be decided, 
whether the following considerations do not forbid us to suppose, that the 
president could have intended, by that act, to embrace and prejudge the 
legislative question, whether there was, or was not, under the circum- 
stances of the case, a cause of war in the article of guaranty. 

It has been shown that such an intention would have usurped the pre- 
rogative not vested in the executive, and even confessedly vested in 
another department. 

In exercising the constitutional power of deciding a question of war, 
the legislature ought to be as free to decide, according to its own sense 
of the public good, on one side as on the other side. Had the procla- 
mation prejudged the question on either side and iiroclaimed its decision 
to the world; the legislature, instead of being as free as it ought, might 



456 LETTERS OF HELVIDIUS. 

be thrown under the dilemma, of either sacrificing its judgment to that of 
the executive ; or, by opposing the executive judgment, of producing a 
relation between the two, departments, extremely delicate among our- 
selves, and of the worst influence on tlje national character and interests 
abroad. A variance of this nature, it will readily be perceived, would 
be very different from a want of conformity to the 7nere recommendations 
of the executive, in the measures adopted by the legislature. 

It does not appear that such a proclamation could have even pleaded 
Qny call, from either of the parties at war with France, for an explanation 
of the light in which the guaranty was viewed. Whilst, indeed, no posi- 
tive indication whatever was given of hostile purposes, it is not conceived 
that any power could have decently made such an application ; or if it 
had, that a proclamation would have been either a safisfactory, or an 
honorable answer. It dould not have been satisfactory, if serious appre- 
hensions were entertained ; because it virould not have proceeded from 
that authority which alone could definitively pronounce the will of the 
United States on the subject. It would not have been honorable, because 
a private diplomatic answer, only, is due to a private diplomatic applica- 
tion ; and to have done so much more, would have marked a pusillanimi- 
ty and Vv'ant of dignity in the executive magistrate. 

But whether the executive was or was not applied to, or whatever 
weight be allowed to that circumstance, it ought never to be presumed 
that the executive would so abruptly, so publicly, and so solemnly, pro- 
ceed to disclaim a sense of the contract, which the other party might con- 
sider, and wish to support by discussion, as its true and reasonable im- 
port. It is asked, indeed, in a tone that sufiiciently displays the spirit 
in which the writer construes both the proclamation and the treaty, 
" Did the executive stand in need of the logic of a foreign agent to en- 
" lighten it as to the duties or the interests of the nation ; or was it bound 
" to ask his consent to a step, which appeared to itself consistent with 
" the former, and conducive to the latter ^ The sense of treaties was 
" to be learned from the treaties themselves." Had he consulted his 
Vatfle, instead of his animosity to France, he would have discovered, 
that however humiliating it might be to wait for a foreign logic, to assist 
the interpretation of an act depending on the national authority alone, 
yet in the case of a treaty, which is as much the treaty of a foreign na- 
tion, as it is ours, and in which foreign duties and rights are as much' in- 
volved as ours, the sense of the treaty, though to be learned from the 
treaty itself, is to be equally learned by both parties to it. Neither of 
them can have a right more than the other, to say what a particular arti- 
cle means ; and where there is equality without a judge, consultation is 
as consistent with dignity as it is conducive to harmony and friendship. 
Let Vattel however be heard on the subject. 

" The third general maxim, or principle, on the subject of interpreta- 
" tion [of treaties] is: I hat neither the one nor the other of the interested 
" or contracting poivers has a right to interpret the act or treaty at its 
^'■pleasure. For if you are at liberty to give my promise what sense 
" you please, you will have the power of obliging me to do whatever 
" you have a mind, contrary to my intention, and beyond my real en- 
" gagement ; and reciprocally, if 1 am aUoiced to explain my promises 
*' as I plciise, I may render them vain and illusive^ ly giving them a sense 
" quite different from that in which they ivere presented to you, and in 



LETTERS OF HELVIDIUS. ^ 457 

** ivJdck you must have taken them in accepting them.'''' Vattel, B. II, c. 
vii. § 265. 

The writer ought to have been particularly sensible of the improbabil- 
ity that a precipitate and ex parte decision of the question arising undet 
the guaranty, could have been intended by the proclamation. He had 
but just gone through the undertaking, to prove that the article of guar- 
anty, like the rest of the treaty, is defensive, not offensive. He had ex- 
amined his books and retailed his quotations, to show that the criterion 
between the two kinds of war is the circumstance of priority in the at- 
tack. He could not therefore but know, that according to his own prin- 
ciples, the question, whether the United States were under an obligation 
or not to take part in the war, was a quesiton of fact whether the first 
attack was m.ade by France or her enemies. And to decide a question 
of fact as well as of principle, without waiting for such representations 
and proofs as the absent and interested party might have to produce, 
v/ould have been a proceeding contrary to the ordinary maxims of jus- 
tice, and "requiring circumstances of a very pecuilai* nature, to warrant 
it towards any nation. Towards a nation which could verify her claim 
to more than bare justice by our own reiterated and formal acknowledg- 
ments, and which must in her present singular and interesting situation 
have a peculiar sensibility to marks of our friendship or alienation, the 
impropriety of such a proceeding would be infinitely increased, and ift 
the same proportion the improbability of its having taken place. 

There are reasons of another sort which would have been a bar to 
such a proceeding. It would have been as impolitic as it would have 
been unfair and unkind. 

If France meant not to insist on the guaranty, the measure, without 
giving any present advantage, would have deprived the United States of 
a future claim which may be of importance to their safety. It would 
have inspired France with jealousies of a secret bias in this country to- 
ward some of her enemies, which might have left in her breast a spirit 
of contempt and revenge, of which the effects might be felt in various 
ways. It must in particular have tended to inspire her with a disinclina- 
tion to feed our commerce with those important advantages which it al- 
ready enjoys, and those more important ones which it anxiously contem- 
plates. The nation that consumes more of the fruits of our soil than 
any other nation in the world, and supplies the only foreign raw* mate- 
rial of extensive use in the United States, would not be unnecessarily 
provoked by those who understand the public interest and make it their 
study as it is their duty to advance it. 

I am aware that the common-place remark will be interposed, that, 
" commercial privileges are not worth having, when not secured by mu- 
" tual interest ; and never worth purchasing because they will grow of 
" themselves out of a mutual interest. Prudent men who do not suffer 
their reason to be misled by their prejudices, will view the subject in a 
juster light. They will reflect, that if commercial privileges are not 
worth purchasing, they are worth having without purchase ; that in the 
commerce of a great nation, tfi'ere are valuable privileges which may be 
granted or not granted, or granted either to this or that country, without 
any sensible influence on the interest of the nation itself; that the friend- 
ly or unfriendly disposition of a country, is always an article of moment 

*Molasses. 

58 



4?8 LETTERS OF HELTIDIUS, 

in the calculations of a comprehensive interest ; that some sacrifices of 
interest will be made to other motives, by nations, as well as by individ- 
uals, though not with the same frequency, or in the same proportions ; 
that more of a disinterested conduct, or of a conduct founded on liberal 
views of interest, prevails in some nations than in others ; that as far as 
can be seen of the influence of the revolution on the genius and the pol- 
icy of France, particularly with regard to the United States, every thing 
is to be hoped by the latter on this subject, which one country can rea- 
sonably hope from another. In this point of view, a greater error could 
not have been committed than in a step that might have turned the pres- 
ent disposition of France to open her commerce to us as far as a liberal 
calculation of her interest would permit, and her friendship towards us, 
and confidence in our friendship towards her could prompt, into a dispo- 
sition to shut it as closely against us as the united motives of interest, of 
distrust, and of ill-will, could urge her. 

On the supposition that France might intend to claim the guaranty, a 
hasty and harsh refusal before we were asked, on a ground that accused 
her of being the aggressor in the war against every power in the cata- 
logue of her enemies, and in a crisis when all her sensibility must be 
alive towards the United States, would have given every possible irrita- 
tion to a disappointment which every motive that one nation could feel 
towards another and towards itself, required to be alleviated by all the 
circumspection and delicacy that could be applied to the occasion. 

The silence of the executive, since the accession of Spain and Portu- 
gal to the war against France, throws great light on the present discus- 
sion. Had the proclamation been issued in the sense, and for the por- 
poses ascribed to it, that is to say, as a declaration of neutrality, another 
would have followed, on that event. If it was the right and duty of the 
government, that is, the president, to manifest to Great Britain and Hol- 
land, and to the American merchants and citizens, his sense, his disposi- 
tion and his views on the question, whether the United States were, under 
the circumstances of the case, bound or not, to execute the clause oj guar- 
anty, and not to leave it uncertain^ whether the executive did or did not 
helieve a state of neutrality to be consistent with our treaties ; the duty^ 
as well as the right, prescribed a similar manifestation to all the parties 
concerned after* Spain and Portugal had joined the otJier maritime en- 
emies of France. The opinion of the executive with respect to a con- 
sistency or inconsistency of neutrality with treaties, in the latter case^ 
could not be inj erred from the proclamation in the former, because the 
circumstances might he different ; the war in the latter case., might be 
defensive on the side of France, though offensive against her other ene- 
mies. Taking the proclamation in its proper sense, as reminding all 
concerned, that as the United States were at peace, (that state not being 
affected by foreign wars, and only to be changed by the legislative au- 
thority of the country,) the laws of peace were still obligatory, and 
would be enforced ; and the inference is so obvious and so applicable to 
all other cases whatever circumstances may distinguish them, that anoth- 
er proclamation would be unnecessary. Here is a new aspect of the 
whole subject, admonishing us in the most striking manner at once of the 

* The -writer is betrayed into an acknowledgment of this in his seventh number, 
where he applies his reasoning to Spain as well as to Great Britain and Holland. 
He had forgotten that Spain was not included in the proclamation. 



LETTERS OF HELYIDIUS. 459 

danger of the prerogative contended for, and the absurdity of the dis- 
tinctions and arguments employed in its favor. It would be as impossi- 
ble in practice, as it is in theory, to separate the power of judging and 
conclumng that the obligations of a treaty do not impose war, from that 
of judging and concluding that the obligations do impose war. In cer- 
tain cases, silence would proclaim the latter conclusion, as intelligibly as 
words could do the former. The writer indeed has himself abandoned 
the distinction in his seventh paper, by declaring expressly that the ob- 
ject of the proclamation would have been defeated " by leaving it uncer- 
" tain, whether the executive did or did not believe a state of neutrality 
" to be consistent with our treaties." 



THE ORIGINAL 

In 

ARTICLES OF CONFEDERATION 



TO ALL TO WHOM THESE PRESENTS SHALL COME. 

We the undersigned, delegates of the states affixed to oar names, send 

greeting. 

Whereas the delegates of the United States of America in congress 
assembled did, on the fifteenth day of November, in the y«ar of our 
Lord one thousand seven hundred and seventy-seven, and in the second 
year of the independence of America, agree to certain articles of con- 
federation and perpetual union between the states of New Hampshire, 
Massachusetts Bay, Rhode Island and Providence Plantations, Connecti- 
cut, New York, New Jersey, Pennsylvania, Delaware, iMaryland, Vir- 
ginia, North Carolina, South Carolina and Georgia, in the words follow- 
ing, viz : — 

Articles of confederation and perpetual union between ike states of New 
Hampshire, Massachusetts Bay, Rhode Island and Providence Plan- 
tations, Connecticut, New York, New Jersey, Pennsi/hania, Delaware^ 
Maryland, Virginia, North Carolina, South Carolina, and Georgia. 

Article' I. The style of this confederacy shall be " The United 
" States of America." 

Art. II. Each state retains its sovereignty, freedom-, and independ- 
ence, and every power, jurisdiction, and right, which is- not by this con- 
federation expressly delegated to the United States in congress assem- 
bled. 

Art. hi. The said states hereby severally enter into a firm league of 
friendship with each other, for their comnion defence, the security of 
their liberties, and their mutual and general welfare ; binding themselves 
to assist each other, against all force offered to, or attacks made upon 
them, or any of them, on account of religion, sovereignty, trade, or any 
other pretence whatever. 

Art. IV. The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different states, in this union, the 
free inhabitants of each of these states, paupere, vagabonds, and fugi- 
tives from justice excepted, shall be entitled to all priveleges and immu- 
nities of free citizens in the several states ; and the people of each state 
shall have free ingress and regress to and from any other state, and shall 
enjoy therein all the pi'ivileges of trade and commerce, subject to the 
same duties, impositions, and restrictions as the inhabitants thereof re- 
spectively, provided that such restrictions shall not extend so far as to 
prevent the removal of property imported into any state, to any other 
state of which the owner is an inhabitant ; provided also that no impo- 



ARTICLES OF CONFEDERATION. 461 

sition, duties, or restrictions shall be laid by any state, on the property of 
the United States, or either of thenn. 

If any person guilty of, or charged with treason, felony, or other high 
misdemeanor, in any state, shall flee from justice and be found in any of 
the United States, he shall, upon demand of the government or executive 
power of the state from which he fled, be delivered up and removed to 
the state having jurisdiction of his offence. 

Full faith and credit shall be given in each of these states to the re- 
cords, acts and judicial proceedings of the courts and magistrates of ev- 
ery other state. 

Art. V. For the more convenient management of the general inter- 
ests of the United States, delegates shall be annually appointed, in such 
manner as the legislature of each state shall direct, to meet in congress 
on the first Monday in November, in every year ; with a power reserved 
to each state to recall its delegates, or any of them, at any time within 
the year, and to send others in their stead, for the remainder of the year. 

No, state shall be represented in congress by less than two, nor by more 
than seven members ; and no person shall be capable of being a delegate 
for more than three years in any term of six years ; nor shall any per- 
son, being a delegate, be capable of holding any office under the United 
States, for which he, or another for his benefit, receives any salary, fees, 
or emolument of any kind. 

Each state shall maintain its own delegates in a meeting of the states, 
and while they act as members of the committee of the states. 

In determining questions in the United States, in congress assembled, 
each state shall have one vote. 

Freedom of speech and debate in congress shall not be impeached or 
questioned in any court, or place out of congress, and the members of 
congress shall be protected in their persons from arrests and imprison- 
ments during the time of their going to, and from, and attendance on 
congress, except for treason, felony, or breach of the peace. 

Art. VI. No state, without the consent of the United States in con- 
gress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance, or treaty with 
any king, prince, or state ; nor shall any person holding any office of 
profit or trust under the United States, or any of them, accept of any 
present, emolument, ofl^ice, or title of any kind whatever from any king, ' 
prince or foreign state ; nor shall the United States in congress assena- 
bled, or any of them, grant any title of nobility. 

. No two or more states shall enter into any treaty, confederation, or 
alliance whatever between thetn, without the consent of the United States 
in congress assembled, specifying accurately the purposes for which the 
same is to be entered into, and how long it shall continue. 

No state shall lay any imposts or duties, which may interfere with any 
stipulations in treaties, entered into by the United States in congress as- 
sembled, with any king, prince, or state, in pursuance of any treaties 
already proposed by congress, to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace by any state, ex- 
cept such number only, as shall be deemed necessary by the United 
States in congress assembled, tor the defence of such state, or its trade ; 
nor shall any body of forces be kept up by any state, in time of peace, 
except such number only, as in the judgment of the United States, in 



462 ARTICLES OF CONFEDERATION. 

congrass assembled, shall be deemed requisite to garrison the forts ne- 
cessary for the defence of such state ; but every state shall always keep 
up a well regulated and disciplined militia, sufficiently armed and ac- 
coutered and shall provide and constantly have ready for use, in pub- 
lic stores, a due number of iieldpieces and tents, and a proper quantity 
of arms, ammunition and camp equipage. 

No state shall engage in any war without the consent of the United States 
in congress assembled, unless such state be actually invaded by enemies, 
or shall have received certain advice of a resolution being formed by 
some nation of Indians to invade such state, and the danger is so immi- 
rient as not to admit of a delay, till the United States in congress assem- 
bled can be consulted ; nor shall any state gi'ant commissions to any ships 
or vessels of war, nor letters of marque or reprisal, except it be after a 
declaration of war by the United States in congress assembled, and then 
only against the kingdom or slate and the subjects thereof, against which 
war has been so declared, and under such regulations as shall be estab- 
lished by the United States in congress assembled ; unless such state be 
infested by pirates, in which case vessels of war may be 'fitted out for 
that occasion, and kept so long as the danger shall continue, or until 
the United States in congress assembled shall determine otherwise. 

Art. VII. When land forces are raised by any state for the common 
defence, all officers of or under the rank of colonel shall be appointed by 
the legislature of each state respectively, by whom such forces shall be 
raised or in such manner as such state shall direct ; and all vacancies 
shall be filled up by the state which first made the appointment. 

Art. VIII. All charges of war, and all other expenses that shall be 
incurred for the common defence or general welfare, and allowed by the 
United States in congress assembled, shall be defrayed out of a common 
treasury, wbich shall be supplied by the several states, in proportion to 
the value of all land within each state, granted to or surveyed for any per- 
son, as such land and the buildings and improvements thereon shall be 
estimated, according to such mode as the United States in congress as- 
sembled shall from time to time direct and" appoint. 

The taxes for paying that proportion shall be laid and levied by the 
authority and direction of the legislatures of the several stales, within 
the time agreed upon by the United States in congress assembled. 

Art. IX. The United States in congress assembled shall have the 
sole and exclusive right and power of determining on peace, and war ex- 
cept in the cases mentioned in the sixth article — of sending and receiv- 
ing ambassadors — entering into treaties and alliances, provided that no 
treaty of commerce shall be made whereby the legislative power of the 
respective states shall be restrained from imposing such imposts and du- 
ties on foreigners, as their own people are subjected to, or from prohibit- 
ing the exportation or importation of any species of goods or commodi- 
ties whatsoever — of establishing rules for deciding, in all cases, what 
captures on land or water shall be legal, and in what manner prizes tak- 
en by land or naval forces in the service of the United States shall be di- 
vided or appropriated — of granting letters of marque and reprisal in 
times of peace — appointing courts for the trial of piracies and felonies 
committed on the high seas — and establishing courts for receiving and 
determining finally appeals in all cases of captures, provided that no 
ntiember of congress shall be appointed a judge of any of the said courts. 



ARTICLES OF CONFEDERATION. 463 

* 

The United States in congress assembled shall also be the last resort 
on appeal jn all disputes and differences now subsisting, or that hereafter 
may arise between two or more states, concerning boundary, jurisdiction 
or any other cause whatever ; which authority shall always be exercised 
in the manner following. Whenever the legislative or executive authori- 
ty, or lawful agent of any state in controversy with another, shall present 
a petition to congress, stating the matter in question, and praying for a 
hearing, notice thereof shall be given by order of congress to the len'is- 
lative or executive authority of the other state in controversy, and a day 
assigned for the appearance of the parties by their lawful agents,, who 
shall then be directed to appoint, by joint consent, commissioners or 
judges to constitute a court for hearing and determining the matter in 
question ; but if they cannot agree, congress shall name three persons 
out of each of the United States, and from the list of such persons each 
party shall alternately strike out one, the petitioners beginning, until the 
number shall be reduced to thirteen ; and from that number not less than 
seven, nor more than nine names, as congress shall direct, shall in the 
presence of congress be drawn out by lot, and the persons whose names 
shall be so drawn, or any fiv£ of them, shall be commissioners or judges, 
to hear and finally determine the controversy, so always as a rrtajor part 
of the judges who shall hear the cause shall agree in the determination : 
and if either party shall neglect to attend at the day appointed, without 
showing reasons which congress shall judge sufficient, or being present 
shall refuse to strike, the congress shall proceed to nominate three per- 
sons out of each state, and the secretary of congress shall strike in be- 
half of such party absent or refusing ; and the judgment and sentence 
of the court to be appointed, in the manner before prescribed, shall be 
final and conclusive ; and if any of the parties shall refuse to submit to 
the authority of such court, or to appear or defend their claim or cause, 
the court shall nevertheless proceed to pronounce sentence, or judgment, 
which shall in like manner be final and decisive ; the judgment or sen- 
tence and other proceedings being in either case transmitted to congress, 
and lodged among the acts of congress, for the security of the parties 
concerned : provided that every commissioner, before he sits in judg- 
ment, shall take an oath, to be administered by one of the judges of the 
supreme or superior court of the state, where the cause shall be tried, 
" well and truly to hear and determine Ike matter in question, according 
" to the best of his judgment, loithout favor, affection, or hope of re- 
" ward ;" provided also that no stale shall be deprived of territory for 
the benefit of the United States. 

All controversies concerning .the private right of soil, claimed under 
different grants of two or more states, whose jurisdictions, as they may 
respect such lands, and the states which passed such grants, are adjust- 
ed, the said grants or either of them being at the same time claimed to 
have originated a«tecedent to such settlement of jurisdiction, shall, on 
the petition of either party to the congress ot the United States, be final- 
ly determined as near as may be in the same manner as is before pre- 
scribed for deciding disputes respecting territorial jurisdiction between 
differeht states. 

The United States in congress assembled shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin 
struck by their own authority, or by that of the respective states — fix- 



464 ARTICLES OF CONFEDERATION. 

ing the standard of weights and nneasures throughout the United States — ^ 
regulating the trade and managing all affairs with the Indians, not mem- 
bers of any of the states, provided that the legislative right of any state 
within its own limits be not infringed or violated — ■ establishing and reg- 
ulating post offices from one state to another, throughout all the United 
States, and exacting such postage on the papers passing through the same 
as may be requisite to defray the expenses of the said office — appoint- 
ing all officers of the land forces, in the service of the United States, 
excepting regimental officers — appointing all the officers of the naval 
forces, and commissioning all officers whatever in the service of the 
United States — making rules for the government and regulation of the 
said land and naval forces, and directing their operations. 

The United States in congress assembled shall have authority to ap- 
point a committee, to sit in the recess of congress, to be denominated 
■•' a committee of the states," and to consist of one delegate from each 
state ; and to appoint such other committees and civil officers as may be 
necessary for managing the general affiiirs of the United States under 
their direction — to appoint one of their number to preside, provided that 
no person be allowed to serve , in the office of president more than one 
year in any term of three years ; to ascertain the necessary sums^ of 
money to be raised for the service of the United States, and to appropri- 
ate and apply the same for defraying the public expenses — to borrow 
money or emit bills on the credit df the United States, transmitting every 
half year to the respective states an account of the sums of money so 
borrowed or emitted — to build and equip a navy — to agree upon the 
number of land forces, and to make requisitions from each state for its 
quota, in proportion to the number of white inhabitants in such state ; 
which requisitions shall be binding, and thereupon the legislature of each 
state shall appoint the regimental officers, raise the men, and clothe, arm, 
and equip th^ in a soldierlike manner, at the expense of the United 
States ; and the officers and men so clothed, armed, and equipped, shall 
march to the place appointed, and within the time agreed on by the Uni- 
ted States in congress assembled : but if the United States in congress as- 
sembled shall, on consideration of circumstances, judge proper that any 
state should not raise men, o'r should raise a smaller number than its quo- 
ta, and that any other state should raise a greater number of men than 
the quota thereof, such extra number shall be raised, officered, clothed, 
armed and equipped in the same manner as. the quota of such state, un- 
less the legislature of such state shall judge that such extra number can- 
not be safely spared out of the same, in which case they shall raise, offi- 
cer, clothe, arm, and equip as many of such extra number as they judge 
can be safely spared. And the officers and men so clothed, armed, and 
equipped, shall march to the place appointed, and within the time agreed 
on by the United States in congress, assembled. 

The United States in congress assembled shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter into 
any treaties or alliances, nor coin money, nor regulate the value thereof, 
nor ascertain the sums and expenses necessary for the defence and wel» 
fare of the United States, or any of them, nor emit bills, nor borrow mon- 
ey on the credit of the United States, nor appropriate money, nor agree 
upon the number of vessels of war, to be built or purchased, or the 
number of land or sea forces to be raised, nor appoint a commander 



ARTICLES OP CONFEDERATION, 465 

m chJef of the army or navy, unless nine states assent to the same ; nor 
shall a question on any other point, except for a(]journing from clay to day, 
be determined, unless by the votes of a majority of the United States in 
'concjress assembled. 

The congress of the United States shall have power to adjourn to any 
?ime within the year, and to any place within the United States, so that 
no period of adjournment be for a longer duration than the space of six 
months ; and shall publish the journal of their proceedings monthly, ex- 
■cept such parts thereof relating to treaties, alliances, or military opera- 
tions, as in their judgment require secrecy ; and the yeas and nays of 
the delegates of each state on any question shall be entered on the jour- 
nal, when it i-s desired by any delegate ; and the delegates of a state, or 
any of thera, at his or their request, shall be furnished with a transcript 
of the said journal, except such parts as are above excepted, to lay be- 
fore the legislatures -of the several states. 

Art. X. The committee of the states, or anj?^ nine of them, shall be 
authorized fo execute, in the recess -of congress, such of the powers of 
■congress as the United States in congress assembled, by the consent of 
nine states, shall from time to time think expedient to vest them with; 
provided that no (rawer be del-egated to the said committee, for the exer- 
cise of which, by the articles of confederation, the voice of nine states 
in the congress of the United States assembled is requisite. 

Art. X!. Canada acceding to this confederation, and joining in the 
measures of the United States, shall be admitted into, an-d ■entitled to all 
the advantages of this union ; but no other colony shall be admitted into 
the same, unless such admission be agreed to by nine states. 

Art. XU. All bills of credit emitted, moneys borrowed, and debts 
contracted by, or under the authority of -congress, before the assembling 
of the United States, in pursuance of the present confederation, shall be 
deemed and considered as a charge against the United States, for pay- 
ment and satisfaction whereof, the said United States, and the public faith 
are hereby solemnly pledged. 

Art. XIII. Every state shall abide by the determinations of the Unit- 
ed States in congress assembled on all questions which b}' this confed- 
eration are submitted to th-em. And the articles of this confederation shall 
be inVielably observed by every state, and the union shall be perpetual ; 
nor shall any alteration at any time hereafter be made in any of them, 
wnless su'ch alteration be agreed to by a congress of the United States, 
■and be afterwards confirmed by the legislatures of every state. 

And whereas it hath pleased the great Governor of the world to feline 
the hearts of the legislatures we respectively represent in congress to ap- 
proj^'e of and' to authori'ze us to ratify the said articles of confederation 
and perpetual union ; Know ye, that we, the undersigned delegates, by 
virtue of the power and authority to us given for that purpose, do by these 
presents, in the name and in behalf of our respective constituents, fully 
and entirely ratify and confirm each and every of the said articles of 
confederation and perpetual union, and all and singular the matters and 
things therein contained : and we do further solemnly plight and engage 
the faith of our respective constituents, that they shall abide by the de- 
terminations of the United States in congress assembled^ on all questions, 
which by the said confederation are submitted to them ^ and that the ar- 
ticles thereof shall be inviolably observed by the states we respectively 
represent, and that the union shall be perpetual. 
59 



466 ARTICLES OF CONFEDERATION. 

In witness whereof, we have hereunto set our hands in congress. 
Done at Philadelphia, in the state of Pennsylvania, the ninth day of July 
in the year of our Lord one thousand seven hundred and seventy-eight, 
and in the third year of the independence of America. 

On the part and iehalf of the state of New Hampshire. 
JosiAH Babtlett, John Wentworth, jun., August 8, 1778. 
On the part and hehaf of the state of Massachusetts Bay. 
John Hancock, Elbridge Gerky, James Lovell, 

Samuel Adams, Francis Dana, Samuel Holten. 

On the part and behalf of the stale of Rhode Island and Providence 

Plantations. 
William Ellery, Henry Marchant, John Collins. 

On the .part and behalf of the state of Connecticut. 
Roger Sherman, Oliver Wolcott, Andrew Adams, 

Samuel Huntington, Titus Hosmer. 

On the part and behalf of the state of New York. 
Jas. Duane, Fra. Lewis, Wm. Duer, Gouv. Morris. 

On the part and behalf of the, state of New Jersey. 
J'no, Witherspoon, Nov. 26, 1778. Nath. Scuddeh, do. 

On the part and behalf of the state of Pennsylvania. 
Robt. Morris, Jona. Bayard Smith, Jos, Reed, 22d July, 1778. 

Daniel Roberdeau, William Clingan. 

On the part and behalf of the state of Delaware. 
Thos. M'Keen, Feb. 13, 1779. ' Nicholas Van Dyke. 

John Dickinson, May 5th, 1779. 

On the part and behalf of the state of Maryland. 
John Hanson, March 1, 1781. Daniel Carroll, do. 

On the part and behalf of the state of Virginia. 
Richard Henry Lee, Thomas Adams, Francis Lightfoot Lee, 
John Bannister, Jno. Harvie. 

On the part and behalf of the state of North Carolina. 
John Pexn, July 21st, 1778. Corns. Harnett, Jno. Williams. 

On the part and behalf of the state of South Carolina. 
Hknry Laurens, Jno. Mathews, Thomas Heywood, jun.- 

William Henry Drayton, Richard Hutson. 

On the part and behalf of the state of Georgia. 
>N0. Walton, 24th July, 1778. Edwd. Telfair, Edw. Langworthy. 

[Note. — From the circumstance of delegates from the same state having signed 
the articles of confederation at different times, as appears by the dates, it is proba- 
ble they affixed their names as they happened to be present in congress, after they 
had been authorized by their constituents.] 



CONSTITUTION 



UNITED STATES 



We the people of the United States, in order to form a nnore perfect 
union, establish justice, ensure domestic tranquillity, provide for the com- 
mon defence, promote the general welfare, and secure the blessings of 
liberty to ourselves and our posterity, do ordain and establish this con- 
stitution for the United States of America. 

ARTICLE I. . 

Sec 1. All legislative powers herein granted shall be vested in a 
congress of the United States, which shall consist of a senate and house 
of representatives. 

Sec. 2. The house of representatives shall be composed of members 
chosen every second year by the people of the several states,* and the 
electors in each state shall have the qualifications requisite for electors of 
the most numerous branch of the state legislature. 

No person shall be a representative who shall not have attained to the 
age of twenty-five years, and been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that state 
in which he shall be chosen. » 

Representatives and direct taxes shall be apportioned among the sev- 
eral states which may be included within this union, according to their 
respective members, which shall be determined by adding to the whole 
number of free persons, including those bound to service for a term of 
years, and excluding Indians not taxed, three fifths of all other persons. 
The actual enumeration shall be made within three years after the first 
meeting of the congress of the United States, and within every subsequent 
term of ten years, in such manner as they shall by law direct. The 
number of representatives shall not exceed one for every thirty thousand, 
but each st^te shall have at least one representative ; and until such enu- 
meration shall be made, the state of New Hampshire shall be entitled to 
choose three, Massachusetts eight, Rhode Island and Providence Planta- 
tions one, Connecticut five, New York six. New Jersey four, Pennsylva- 
nia eight; Delaware one, Maryland six, Virginia ten, North Carolina five, 
South Carolina five, and Georgia three. 

When vacancies happen in the representation from any state, the ex- 
ecutive authority thereof shall issue writs of election to fill such vacancies. 

The house of representatives shall choose their speaker and other 
officers; and shall have the sole power of impeachment. 

Sec 3. The senate of the United States shall be composed of two 
senators from each state, chosen by the legislature thereof for six years ; 
and each senator shall have one vote. 



468 CONSTITUTION OF THE UNITED STATES. 

Immediately after they shall be assembled in consequence of jbe first 
election, they shall be divided as equally as may be into three classes. 
The seats of the senators of the first class shall be vacated at the expi- 
ration of the second year, of the second class at the expiration of the 
fourth year„and of the third class at the expiration of the sixth year, so 
that one third may be chosen every second year ; and if vacancies hapi- 
pen by resignation or otherwise, during the recess of the legislature of 
any state, the executive thereof may make temporary appointments un- 
til the next meeting of the legislature, which shall then fill such vacancies. 

No person shall be a senator who shall not have attained to the age of 
thirty years, and been nine years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of that state, for which he shall 
be chosen. 

The vice-president of the United States shall be president of the sen- 
ate, but shall have no vote, unless they be equally divided. 

The senate shall choose their other officers, and also a president joro- 
tempore, in the absence of the vice-president, or when he shall exercise 
the office of president of the United States. 

The senate shall have the sole power to try all impeachments. When - 
sitting for that purpose they shall be~on oath or affirmation. Wheri the 
president of the United States is tried, the chief justice shall preside; 
and no person shall be convicted without the concurrence of twt>-thirds 
©f the members. piresent. 

Judgment in cases of impeachment shall not extend further than to re- 
moval from office, and disqualification to hold and enjoy any office of 
honor, trust, or profit, under the United States : but the party convicted 
shall nevertheless be liable and subject to indictment^ trial, judgment,, and 
punishment, according to law. 

Sec 4. The times, places and manner of holding elections for sena- 
tors and representatives, shall be prescribed in each state by the legisla- 
ture thereof; but the congress may at any time by law make or alter 
such regulations, except as to the places of choosing senators. 

The congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall by 
law appoint a different day. 

Sec. 5. Each house shall be the judge of the elections, returns and 
qualification of its own members, and a majority of each shall constitute 
a quorum to do business ; but a smaller number may adjourn from day 
to day, and may be authorized to compel the attendance of absent mem- 
bers, in such manner, and under such penalties as each house may pro- 
vide. 

Each house may determine the rules of its proceedings, punish its 
members for disorderly behavior, and, with the concurrence of two 
thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from time to 
time publish the same, excepting such parts as may in their judgment 
require secrecy : and the yeas and nays of the members of either house 
on any question shall, at the desire of one fifth of those present, be en- 
tered on the journal. 

Neither house, during the session of congress, shall, without the con- 
sent of the other, adjourn for more than three days, nor to any other 
placethan that in which the two houses shall be sitting. 



CONSTITUTION OF THE UNITED STATES. 469 

Skc. 6. The senators and representatives shall receive a compensa- 
tion for their services, to be ascertained hy law, and paid out of the 
treasury of the United States. They shall in all cases, except treason, 
felony, and breach of the peace, be privileged from arrest during their 
attendance at the session of their respective houses, and in going to and 
returning from the same ; and for any speech or debate in either house, 
they shall not be questioned in any other place. 

No senat-or or representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United 
States, which shall have been created, or the emoluments whereof shall 
have been increased during such time ; and no person holding any office 
under the United States, shall be a member of either house during his 
continuance in office. 

Sec. 7. All bills for raising revenue shall originate in the house of 
representatives ; but the senate may propose or concur with amendments 
as on other bills. 

Every bill which shall have passed the house of representatives and 
the senate, shall, before it become a law, be presented to the president of 
the United States ; if he approve he shall sign it, but if not he shall re- 
turn it, with his objections to that house in which it shall have originated, 
who shall enter the objections at large on their journal, and proceed to 
reconsider it. If after such reconsideration twothird.s of that house shall 
agree to pass the bill, it shall be sent, together with the objections, to the 
other house, by which it shall likewise be reconsidered, and if a, 'proved 
by two thirds of that house, it shall become a law. But in all such cases 
the votes of both houses shall be determined by yeas and nays, and the 
names of the persons voting for and against the bill shall be entered on 
the journal of each Jiouse respectively. If any bill shall not be returned 
by the president within ten days, (Sundays excepted) after it shall have 
been" presented to him, the same shall be a law, in like manner as if he 
had signed it, unless the congress by their adjournment prevent its return, 
in which case It shall not be a law. 

Every order, resolution, or vote to which the concurrence of the senate 
and house of representatives may be necessary (except on a question of 
adjournment) shall be presented to the president of the United States ; 
and before the same shall take effect, shall be approved by him, or being 
disapproved by him, shall be repassed |by two thirds of the senate and 
house of representatives, according to the rules and limitations prescribed 
in the case of a bill. 

Sec. 8. The congress shall have power — 

To lay and collect taxes, duties, imposts, and excises, to pay the debts 
and provide for the common defence and general welfare of the United 
States ; but all duties, imposts and excises shall be uniform throughout 
the United States ; 

To borrovv money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the several 
states, and with the Indian tribes ; 

To establish an uniform rule of naturalization and uniform laws on the 
subject of bankruptcies, throughout the United States ; 

To coin money, regulate the value thereof, and of foreign coin, and 
fix the standard of weights and measures ; 

To provide for the punishment of counterfeiting the securities and cur- 
rent coin of the United States ; 



470 CONSTITUTION OF THE UNITED STATES. 

To establish post-offices and post-roads ; 

To promote the progress of science and useful arts, by securing for 
limited times to authors and inventors the exclusive right to their respec- 
. live writings and discoveries ; 

To constitute tribunals inferior to the supreme court ; to define and 
punish piracies, and felonies committed on the high seas, and offences 
against the law of nations ; 

To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water ; 

To raise and support armies, but no appropriation of money to that use 
shall be for a longer term than two years ; 

To provide and maintain a navy ; 

To make rules for the government and regulation of the land and na- 
val forces ; 

To provide for calling forth the militia to execute the laws of the union, 
suppress insurrections and repel invasions ; 

To provide for organizing, arming, and disciplining the militia, and for 
governing such part of them as may be employed in the service of the 
United States, reserving to the states respectively, the appointment of the 
officers, and the authority of training the militia according to the disci- 
pline prescribed by congress ; 

To exercise exclusive legislation in all cases whatsoever, over such dis- 
trict (not exceeding ten miles square) as may, by cession of particular 
states, and the acceptance of congress, become the .seat of the govern- 
ment of the United States, and to exercise like authority over all places 
purchased by the consent of the legislature of the state in which the same 
shall be, for the erection of forts, magazines, arsenals, dockyards and 
other needful buildings ; and 
y^"^" To make all laws which shall be necessary and proper for carrying 
/^ into execution the foregoing powers, and all other powers vested by this 
/ constitution in the government of the United States, or in any department 

( or officer thereof. 

^~~\ Sec. 9. The migration or importation of such persons as any of the 
states now existing shall think proper to admit, shall not be prohibited by 
the congress prior to the year one thousand eight hundred and eight, but 
a tax or duty may be imposed on such importation, not exceeding ten 
dollars for each person, 
r The privilege of the writ of habeas corpus shall not be suspended, un- 
( less when in cases of rebellion or invasion the public safety may require it. 

No bill of attainder, or ex post facto law shall be passed. 

No capitation, or other direct tax, shall be laid, unless in proportion to 
the census or enumeration herein before directed to be taken. 

No tax or duty shall be laid on articles exported from any state. No 
preference shall be given by any regulation of commerce or revenue to 
the ports of one state over those of another ; nor shall vessels bound to 
or from, one state, be obliged to enter, clear, or pay duties in another. 

No money shall be drawn from the treasury, but in consequence of 
appropriations made by law ; and a regular statement and account of the 
receipts and expenditures of all public money shall be published from 
time to time. 

No title of nobility shall be granted by the United States ; and no per- 
son holding any office of profit or trust under them, shall, without the 



CONSTITUTION OF THE UNITED STATES. 471 

consent of the congress, accept of any present, emolument, office, or 
title, of any kind whatever, from any king, prince or foreign state. 

Sec. 10. No state shall enter into any treaty, alliance, or confedera- 
tion ; grant letters of marque and reprisal ; coin money ; emit bills of 
credit ; make any thing but gold and silver coin a tender in payment of 
debts ; pass any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts, or grant any title of nobility. 

No state shall, without the consent of the congress, lay any imposts or 
duties on imports or exports, except what may be absolutely necessary 
for executing its inspection laws : and the net produce of all duties and 
imposts, laid by any state on imports or exports, shall be for the use of 
the treasury of the United States ; and all such laws shall be subject to 
the revision and control of the congress. No state shall, without the con- 
sent of congress, lay any duty of tonnage, keep troops, or ships of war 
in time of peace, enter into any agreement or compact with another state, 
or with a foreign power, or engage in war, unless actually invaded or in 
such imminent danger as will not admit of delay. 

ARTICLE II. 

Sec 1, The e xecutive power shall be vested in a president of the 
United States~of America. He shall hold his office during the term of 
four years, and, together with the vice-president, chosen for the same 
term, be elected as follows : — 

Each state shall appoint, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole number of senators and 
representatives to which the state may be entitled in the congress : but 
no senator or representative, or person holding an office of trust or profit 
under the Unhed States, shall be appointed an elector. 

The electors shall meet in their respective states, and vote by ballot 
for two persons, of whom one at least shall not bo an inhabitant of the 
same state with themselves. And they shall make a list of all the per- 
sons voted for, and of the number of votes for each ; which list they 
shall sign, and certify, and transmit sealed to the seat of government of 
the United States, directed to the president of the senate. The presi- 
dent of the senate shall, in the presence of the senate and house of rep- 
resentalives, open all the certificates, and the votes shall then be counted. 
The person having the greatest number of votes shall be the president, 
if such number 'be a majority of the whole number of electors appoint- 
ed ; and if there be more than one who have such majority, and have an 
equal number of votes, then the )iouse of representatives shall immedi- 
ately choose by ballot one of them for president ; and if no person have 
a majority, then from the five highest on the list the said house shall in 
like manner choose the president. But in choosing the president, the 
votes shall be taken by states, the representation from each state having 
one vote ; a quorum for this purpose shall consist of a member or mem- 
bers from two thirds of the stales, and a majority of all the states shall 
be necessary to a choice. In every case, after the choice of the presi- 
dent, the person having the greatest number of votes of the electors 
shall be the vice-president. But if there should remain two or more 
who have equal votes, the senate shall choose from them by ballot the 
vice-president. 



472 CONSTITUTION OF THE UNITED STATES. 

The congress may determine .the time of choosing the electors, and 
the day on which they shall give their votes; which day shall be the 
same throughout the United States. 

No person except a natural born citizen, or a citizen of the United 
States, at the time of the adoption of this constitution, shall be eligible 
to the office of president; neither shall any person be eligible to that 
office, who shall not have attained to the age of thirty-five years, and 
been fourteen years a resident within the United States. 

In case of the removal of the president from office, or of his death, 
resignation, or inability to discharge the powers and duties of the said 
office, the same shall devolve on the vice-president, and the congress 
may by law provide for the case of removal, death, resignation or inabil- 
ity, both of the president and vice-[)resident, declaring what officer shall 
then act as president, and such officer shall act accordingly, until the dis- 
ability be removed, or a president shall be elected. 

The president shall, at stated titnes, receive for his services, a com- 
pensation, which shall neither be increased nor diminished during the pe- 
riod for which he shall have been elected, and he shall not receive with- 
in that period any other emolument from the United States, or any of 
them. 

Before he enter on the execution of his office, he shall take the fol- 
lowing oath or affirmation : — 

"■ 1 do solemnly swear (or affirm) that 1 will faithfully execute the office 
" of president of the United States, and will, to the best of my ability, 
" presonve, protect and defend the constitution of the United States." 

Sec. 2. The president shall be commander in chief of the army and 
navy of the United States, and of the militia of the several states, when 
called into the actual service of the United States ; he mav require the 
opinion, in writing, of the principal officer in each of the ^executive de» 
partments, upon any subject relating to the duties of their respective of- 
fices, and he shall have power to grant reprieves and pardons for offences 
against the United States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of the sen* 
ate, to make treaties, provided two thirds of the senators present concur; 
and he shall nominate, and by and with the advice and consent of the 
senate, shall appoint ambassadors, other public ministers and consuls, 
judges of the supreme court and all other officers of the United States, 
whose appointments are not herein otherwise provided for, and which 
shall be established by law ; but the congress may by la.w vest the ap* 
pointment of such inferior officers, as they think proper, in the president 
alone, in the courts of law, or in the hqads'of departments. 

The president shall have power to fill up all vacancies that may hap- 
pen during the recess of the senate, by granting commissions which shall 
expire at the end of their next session. 

Sec. 3. He shall from time to time give to the congress information 
of the state of the union, and recommend to their consideration such 
measures as he shall judge necessary and expedient ; he may, on extra- 
ordinary occasions, convene both houses, or either of them, and in case 
of disagreement between them, with respect to the time of adjournment, 
he may adjourn them to such time as he shall think proper ; he shall re- 
ceive ambassadors and other public ministers ; he shall take care that the 



CONSTITUTION OF THE UNITED STATES. 473 

laws be faithfully executed, and shall commission all the officers of the 
United States. 

Sec. 4. The president, vice-president and all civil officers of the 
United States, shall be removed from office on impeachment for, and con- 
viction of, treason, bribery, or other high crimes and misdemeanors. 

ARTICLE III. 

Sec. L The judicial power of the United States shall be vested iu 
one supreme court, and in such inferior courts as the congress may from 
time to time ordain and establish. The judges, both of the supreme and 
inferior courts, shall hold their offices during good behavior and shall, at 
stated times, receive for their services, a compensation, which shall not 
be diminished during their continuance in office. 

Sec. 2. The judicial power shall extend to all cases, in law and equi- 
ty, arising under this constitution, the laws of the United States, and 
treaties made, or which shall be made, under their authority ; — to all 
cases affecting ambassadors, other public ministers and consuls ; — to 
all cases of admiralty and maritime jurisdiction ; — to controversies to 
which the United States shall be a party; — to controversies between 
two or more states ; — betv/een a state and citizens of another state ; — 
between citizens of different states ; — between citizens of the same state 
claiming lands under grants of different states, and betv/een a state or a 
citizen thereof, and foreign states, citizens or subjects. 

In all cases affecting ambassadors, other public ministers and consuls, 
and those in which a state shall be a party, the supreme court shall have 
original jurisdiction. In all the other cases beforementioned, the su- 
preme court shall have appellate jurisdiction, both as )o law and fact, 
with such exceptions, and under sucli regulations as the congress shall 
make. 

The trial of all crimes, except in cases of impeachment, shall be by 
jury ; and such trial shall be held in the state where the said crimes shall 
have been committed ; but when not committed within any state, the trial 
shall be at such place or places as the congres may by law have directed. 

Sec 3. Treason against the United States, shall consist only in levy- 
ing war against them, or in adhering to their enemies, giving them aid 
and comfort. No person shall be convicted of treason unless on the 
testimony of two witnesses to the same overt act, or on confession in 
open court. ^ 

The congress shall have power to declare the punishment of treason, 
but no attainder of treason shall work corruption of blood, or forfeiture 
except during the life of the person attainted. 

ARTICLE IV. 

Sec. L Full faith and credit shall be given in each slate to the pub- 
lic acts, records, and judicial proceedings of every other state. And the 
congress may by general laws prescribe the manner in which such acts, 
records and proceedings shall be proved, and the effect thereof. 

Sec. 2. The citizens of each state shall be entitled to all privileges 
and immunities of citizens in the several states. 

A person charged in any state with treason, felony, or other crime, 
who shall flee from justice, and be found in another state, shall on de- 

60 



474 CONSTITUTION OF THE UNITED STATES. 

mand of the executive authority of the state from which he fled, be de 
livered up to be removed to the state having jurisdiction of the crime. 

No person held to service or labor in one state, under the lavs's thereof 
escaping into another, shall, in consequence of any law or regulation 
therein, be discharged from such service or labor, but shall be delivered 
up on claim of the party to whom such service or labor may be due. 

Sec 3. New states may be admitted by the congress into this union ; 
but HO new state shall be formed or erected within the jurisdiction of any 
other state ; nor any state be formed by the junction of two or more 
states, or parts of states, without the consent of the legislatures of the 
states concerned, as well as of the congress. 

The congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property belonging 
to the United States ; and nothing in this constitution shall be so constru- 
ed as to prejudice any claims of the United States, or of any particular 
state. 

Sec. 4. The United States shall guaranty to every state in this union 
a republican form of government, s^nd shall protecreach of them against 
invasion ; and on application of the legislature, or of the executive (when 
the legislaturecannot be convened) against domestic violence. 

ARTICLE V. 

The congress, whenever two thirds of both houses shall deem it neces- 
sary, shall propose amendments to this constitution, or, on the application 
of the legislatures of two thirds of the several states, shall call a con- 
vention for proposing amendments, which, in either case, shall be valid 
to all intents and purposes, as part of this constitution, when ratified by 
the legislatures of three fourths of the several states, or by conventions 
in three fourths thereof, as the one or the other mode of ratification may 
be proposed by the congress ; provided that no amendment which may be 
made prior to the year one thousand eight hundred and eight shall in 
any manner affect the first and fourth clauses in the ninth section of the 
first article ; and that no state, without its consent, shall be deprived of 
its equal suffrage in the senate. 

ARTICLE VI. 

All debts contracted and engagements entered into, before the adop- 
tion of this constitution, shall be as valid against the United States under 
this constitution, as under the confederation, 

This constitution and the laws of the United States which shall be 
made in pursuance thereof ; and all treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
law of the land ; and the judges in every state shall be bound thereby, 
any thing in the constitution or laws of any state to the contrary notwith- 
standing. 

The senators and representatives before mentioned, and the members 
of the several state legislatures, and all executive and judicial officers, 
both of the United States and of the several states, shall be bound by 
oath or affirmation, to support this constitution ; but no religious test shall 
ever be required as a qualification to any office or public trust under the 
United States. . 



CONSTITUTION OP THE UNITED STATES. 475 



ARTICLE VII. 

The ratification of the conventions of nine states shall be sufficient for the 
establishment of this constitution between the states so ratifying the same. 

Done in convention by the unanimous consent of the states present, 
the seventeenth day of September, in the year of our Lord one thousand 
seven hundred and eighty-seven, and of the independence of the United 
States of America the twelfth. In witness whereof we have hereunto 
subscribed our names. 

GEORGE WASHINGTON, President, 
and deputy from Virginia, 
i John Langdon, 



New Hampshire. 

Massachusetts. 

Connecticut. 
New York. 

New Jersey. 



Pennsylvania. 



Delaware. 



Maryland. 



Virginia. 



North Carolina. 



South Carolina. 



Georgia. 



Attest. 



\ Nicholas Gilman. 

i Nathaniel Gorham, 

( RuFus King. 

( William Samuel Johnson, 

\ Roger Sherman. 

Alexander Hamilton. 
r William Livingston, 
J David Brearley, 
j W^illiam Patterson, 
{^Jonathan Dayton. 

f Benjamin Franklin, 
I Thomas Mifflin, 
j Robert Morris, 
J George Clymee, 
j Thomas Fitzsimons, 
I Jar ED Ingersoll, 
I James Wilson, 

(_G0UVERNEUR MoRRIS. 

1 George Read, 
Gunning Bedford, Jr. 
John Dickinson, 
Richard Bassett, 
Jacob Broom. 

! James M'Henry, 
Daniel of St. Tho. Jennifer, 
Daniel Carroll. 
John Blair, 
James Madison, Jr. 
William Blount, 
Richard Dobbs Spaight, 
Williamson. 
fJ- Rutledge, 

J C- COTESWORTH PiNCKNEY, 

j Charles Pinckney, 
(_ Pierce Butler. 

i William Few, 

( Abraham Baldwin. 

WILLIAM JACKSON, Secretary. 



/WiL 

< Rich 
(Hu. 



476 CONSTITUTION OF THE UNITED STATES. 

IN CONVENTION. 

Monday, September 17, 1787. 

PRESENT. 

The states of New Hampshire, Massachusetts, Connecticut, Mr. Hamil- 
ton from New York, New Jersey, Pennsylvania, Delaware, MaryTand, 
Virginia, North Carolina, South Carolina, and Georgia. 
Resolved, That the preceding constitution be laid before the United 
States in congress assembled ; and that it is the opinion of this conven- 
tion, that it should afterwards be submitted to a convention of delegates, 
chosen in each state by the people thereof, under the recommendation 
of its legislature, for their assent and ratification ; and that each conven- 
tion assenting to, and ratifying the same, should give notice thereof to the 
United Stales in congress assembled. 

Resolved, That it is the opinion of this convention, that as soon as the 
conventions of nine states shall have ratified this constitution, the United 
States in congress assembled should fix a day on which electors should 
be appointed by the states which shall have ratified the same,' and a day 
on which the electors should assemble to vote for the president, and the 
time and place for commencing proceedings under this constitution ; that 
after such publication, the electors should be appointed, and the senators 
and representatives elected ; that the electors should meet on the day 
fixed for the election of the president, and should transmit their votes, 
certified, signed, sealed, and directed, as the constitution- requires, to the 
secretary of the United States in congress assembled ; that the senators 
and representaiives should convene at the time and place assigned ; that 
the senators sliould appoint a president of the senate, for the sole pur- 
pose of receiving, opening, and counting the votes for president ; and 
that after he shall be chosen, the congress, together with the president, 
should, without delay, proceed to execute this constitution. 
By the unanimous order of the convention. 

GEORGE WASHINGTON, President, 
William Jackson, Secretary. 



IN CONVENTION. 

Sir, September 17, 1787. 

" We have now the honor to submit to the consideration of the United 
" States in congress assembled that constitution which has appeared to. us 
" the most advisable. 

"The friends of our country have long seen and desired, that the 
'" power of making war, peace and treaties : that of levying money and 
" regulating commerce ; and the correspondent executive and judicial 
" authorities, should be fully and effectually vested in the general gov- 
" ernment of the union : but the impropriety of delegating such exten- 
" sive trust to one body of men is evident. Hence results the necessity 
" of a different organization. 

It is obviously impracticable in the federal government of these states, 
" to secure all rights of independent sovereignty to each, and yet pro- 
" vide for the interest and safety of all. Individuals entering into society 
" must give up a share of liberty to preserve the rest. The magnitude 
" of the sacrifice must depend as well on situation and circumstance, as 



CONSTITUTION OF THE UNITED STATES. 477 

" on the object to be obtained. It is at all times difficult to draw with 
" precision the line between those rights which must be surrendered, 
" and those which may be reserved ; and on the present occasion this 
" difficulty was increased by a difference among the several states as to 
" their situation, extent, habits, and particular interests. 

" In all our deliberations on this subject, we kept steadily in our view 
" that which appears to us the greatest interest of every true American, 
" the consolidation of our union, in which is involved our prosperity, fe- 
" licity, safety, perhaps our national existence. This important consid- 
" oration, seriously and deeply impressed on our minds, led each state in 
" the convention to be less rigid on points of inferior magnitude than 
" might have been otherwise expected ; and thus the constitution, which 
" we now present, is the result of a spirit of amity, and of that mutual 
" deference and concession which the peculiarity of our political situa- 
" tion rendered indispensable. 

'' That it will meet the full and entire approbation of every state, is 
" not perhaps to be expected ',- but each will doubtless consider, that had 
" her interests been alone consulted, the consequences might have been 
" particularly disagreeable or injurious to others : that it is liable to as 
" few exceptions as could reasonably have been expected, we hope 
" and believe : that it may promote the lasting welfare of that country 
" so dear to us all, and secure her freedom and happiness, is our most 
" ardent wish. 

" With great respect, we have the honor to be, sir, your excellency's 
" most obedient and humble servants. 

" GEORGE WASHINGTON, President, 
" By unanimous order of the convention. 

" His excellency the President of Congkess." 



AMENDMENTS. 



[The conventions of a number of the states having at the time of their adopting 
the constitution expressed a desire, in order to prevent misconstruction or abuse 
of its powers, that further declaratory and restrictive clauses should be added, con- 
gress, at the session begun and held at the city of New York, on Wednesday, the 
4th of March, 1789, proposed to the legislatures of the several states twelve amend- 
ments, ten of wliich only were adopted. They are the ten first following] 



ARTICLE I. 

Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press : or the right of the people peaceably to assemble 
and to petition the government for a redress of grievances. 

ARTICLE II. 

A well-regulated militia being necessary to the security of a free state, 
the right of the people to keep and bear arms shall not be infringed. 



478 CONSTITUTION OF THE UNITED STATES. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house without 
the consent of the owner : nor in time of war, but in a manner to be 
prescribed by law. 

ARTICLE IV. 

The right of the people to be secured in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be vio- 
lated, and no warrant shall issue, but upon probable cause supported by 
oath or affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

ARTICLE V. 

No person shall be held to answer for a capital or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, except in 
cases arising in the land or naval forces, ot in the militia when in actual 
service in time of war or public danger ; nor shall any person be sub- 
ject for the same offence to be twice put in jeopardy of life or limb ; nor 
shall be compelled in any criminal case to be a witness against himself; 
nor be deprived of life, liberty, or property without due process of law ; 
nor shall private property be taken for public use without just compensa- 
tion. 

ARTICLE VI. 

In all criminal prosecutions the accused shall enjoy the right to a spee- 
dy and public trial, by an impartial jury of the state and district wherein 
the crime shall have been committed, which district shall have been pre- 
viously ascertained by law, and to be informed of the nature and cause 
of the accusatipn ; to be confronted with the witnesses against him ; to 
have compulsory process for obtaining witnesses in his favor and to have 
the assistance of counsel for his defence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved ; and no 
fact tried by a jury shall be otherwise re-examined in any court of the 
United states, than according to the rules of the common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the constitution of certain rights, shall not be con- 
strued to deny or disparage others retained by the people. 

ARTICLE X. 

The powers not delegated to the United States by the constitution, 
nor prohibited by it to the states, are reserved to the states respectively, 
or to the people. 



CONSTITUTION OF THE UNITED STATES. 479 

ARTICLE XI. 

The judicial power of the United States shall not be construed to ex- 
tend to any suit in law or equity, commenced or prosecuted against one 
of the United States by citizens of another state, or by citizens or sub° 
jects of any foreign state. 

ARTICLE XII. 

The electors shall meet in their respective states, and vote by ballot 
.for president and vice-president, one of whom, at least, shall not be an 
inhabitant of the same state with themselves ; they shall name in their 
ballots the person voted for as president, and in distinct ballots the per- 
son voted for as vice-president : and they shall make distinct lists of all 
persons voted for as president, and of all persons voted for as vice-presi- 
dent, and of the number of votes for each, which lists they shall sign 
and certify, and transmit sealed to the seat of the government of the 
United States, directed to the president of the senate ; the president of 
the senate shall, in the presence of the senate and house of representa- 
tives, open all the certificates, and the votes shall then be counted : the 
person having the greatest number of votes for president, shall be the 
president, if such number be a majority of the whole number of elect- 
ors appointed ; and if no person have such a majority, then from the per- 
sons having the highest numbers, not exceeding three on the list of those 
voted for as president, the house of representatives shall choose immedi- 
ately by ballot, the president. But in choosing the president, the votes 
shall be taken by states, the representation from each state having one 
vote ; a quorum for this purpose shall consist of a member or members 
from two thirds of the states, and a majority of all the states shall be ne- 
cessary to a choice. And if the house of representatives shall not choose 
a president whenever the right of choice shall devolve upon them, before 
the fourth day of March next following, then the vice-president shall act 
as president, as in the case of the death or other constitutional disability 
of the president. 

The person having the greatest number of votes as vice-president, shall 
be the vice-president, if such number be a majority of the whole number 
of electors appointed ; and if no person have a majority, then from the 
two highest numbers on the list, the senate shall choose the vice-presi- 
dent ; a quorum for the purpose shall consist of two thirds of the whole 
number of senators and a majority of the whole number shall be neces- 
sary to a choice. 

But no person constitutionally ineligible to the office of president shall 
be eligible to that of vice-president of the United States. 

[Note. — The eleventh article of the amendments to the constitution was pro- 
posed at the second session of the third congress ; the twelfth article, at the first 
session of the eighth congress.] 



INDEX 



3?AGE. 

No. L — Introduction,-— ..,,%■.. 7 

Necessity of a new constitution, . . * . 7 

Obstacles to be encountered, ..... 7 

Inducements to moderation in controversy, ... 8 

Gf«neral propositions to be discussed, . » . 9 

II, III, IV, V. — Concerning dangers from foreign Force and in- 
fluence, — . . . . . . .10 

Inquiry into the importance of union, . , . 10 

Characteristics of our country and people, . . . 11 

History of the confederation, , . » » 12 

''~'How and by whom the new constitution was framed, . 12 

Propriety of candid deliberation as to its provisions, . 13 

—Public safety an important object of government, . . 14.- 

XJnion will diminish the causes of war, ... 15 

Union will secure the election of capable men to office, . 15 

Union will lead to a readier settlement of differences with other 
nations, . . • . . . ' . 16 

""^—Union will strengthen the nation so as not to invite hostility, 17 

Dangers arising from conflicting interests of nations considered, 18 
Comparison of the facilities for defence by a union, and by sepa- 
rate sovei'eignties, . . . . « « 19 

Results of union illustrated by the history of Great Britain, 21 . 

Danger of dissensions between separate confederacies or states, 22 
*"'^" Impossibility of lasting alliances between states v;hilst distinct, 23 

VI, VII. '— Concerning dangers from war between the states, — 24 
Frequent contests would arise between the states, if separate, 24 

Illustrations from history of other nations, . _ . . 24, 25 

The idea that the genius of republics and the influence of com- 
merce will secure peace, chimerical, ... 26 
Proofs from history, ...... 27 

Danger of territorial disputes, . , ... 29 

* Danger of competitions of commerce, . . ^ . 31 

Danger of collisions arising from the apportionment of the public 

debt of the union, . . . • . .31 

Conflicts of laws, ...... 32 

Alliances between states, and with foreign nations, , . 33 

YIIL— -The effects oe internal war in producing standing armies 

AND OTHER INSTITUTIONS UNFRIENDLY TO LIBERTY, . . 33 

Nature of the contests which would arise between states, . 34 
Such contests would result in standing armies and military estab- 
lishments, ....... 34 

Consequent danger from military usiirpation, . . 36 

Union the only security against such dangers, , . 37 

IX, X. — The UTILITY of the union as a safeguard against domestic 

FACTION AND INSURRECTION,-^ ....'. 38 

Distractions which agitated the republics of Greece and Italy, 38 
Enlargement of the republic a safeguard against such distractions, 39 
Views of Montesquieu, ..... 39, 40 

Perfect equality of states not essential in a confederacy, i . 41 

Dangers of factions in popular governments, . . 42 

The remedies or preventives discussed, , . . 43 

61 



482 



INDEX. 



Impracticability of removing the causes of faction, . . 44 

A pure democracy admits of no cure fpr faction, . . 45 

Checks and safeguards in a republic, . . .46 

Superiority of a large over a small republic, . . .47 

XI. — The utility of the union -with respect to commekce and a 

NAVY, . . . • • • • .48 

Jealousy in Europe of our commercial tendencies, . . 48 

Union will increase our power to obtain commercial privileges 
from other nations, . . . . . .49 

Union wUl enable us to maintain a navy, . . . 50 

"Weakness and insignificance will result from disunion, . 50,61 

Effect of a navy on our fisheries, . . . .51 

Union will increase the aggregate commerce of the states, . 62 

Union will give us the ascendant in the affairs of this continent, 53 

XII. — The utility of the union with respect to revenue, — . 54 

Prosperity of commerce a source of national wealth, . 54 

Commerce increases the means of revenue, ... 64 

Revenue from direct taxation impracticable, , . . 55 
Impost duties must be relied on for revenue, * . .55 

Union will facilitate the collection of such duties, . . 65, 56 

Difiiculty of separate States collecting such duties, . . 56 

Necessity of revenue to a nation, .... 67 

XIII. — The same subject continued, with a view to economy, . 68 

Union favorable to economy in public expenditure, . . 58 

Probable confederations in case of disruption of the union, . 59 

Increased cost of separate governments, ... 60 

XIV. — An objection drawn from the extent of country answered, 60 

Practicability of extending the limits of a republic, . . 60 

Distinction between a republic and a democracy in this respect, 61 

Extent of the union compared with that of European states, 62 

Jurisdiction of the general government limited, . . 62 

Facilities of intercourse will increase, ... 63 

Border states will need protection from the union, . . 63 

Disunion more dangerous than union, ,. . . 64 

XV. XVI. — Concerning the defects of the present confederation, 
IN relation to the principle op legislation for the states in 
their collective capacities, . . . . .65 

Insufficiency of the confederation to preserve the union, . 65 

_,^_^ Disastrous results of its defects, .... 66 

^"**~" Increase of power in the national government necessary, . 67 

National legislation must act on individuals instead of states, "87 

A league or alhance of states will be inefficient, . . 68 

What is implied in a government, . . . . 69 

Necessity of a controlling head to the confederation, . . 70 

In a league of states, the only remedy for disobedience is force, 72 

Difficulties involved in this remedy, . . . . - 72 

A military despotism would result, . . . . 73 

Impracticability of sustaining the union by such means'", " . 73 
Superior facility with which a national government would execute 
% its laws, . . . . . . .74 

Or repress commotions, ..... 75 

XVII, XVIII, XIX, XX. — The subject continued, and illustrated 

BY EXAMPLES, TO SHOW THE TENDENCY OF FEDERAL GOVfl|tNMENTS, BATH- 
ER TO ANARCHY AMONG THE MEMBERS, THAN TYRANNY IN THE HEAD, 76 

Danger of encroachment on stat6 rights and powers, considered, 76 

The danger of national weakness more to be feared, . . 76 

Pervading influence of the local governments, • . 77 

Illustration from the history of the feudal system, . . 78 

Illustration from the history of the Grecian republics, . . 79 

Illustration from the history of the Achaean league, . . 81 

Illustration from the history of the Germanic body, . , 84 



INDEX. 



183 



lilustration from the liistory of Poland, 

Illustration from the history of the Swiss cantons, . 

Illustration from the history of the United Netherlands, 



87 
87 



101 

102 
102 



XXI, XXII. FUHTHER DEFECTS OF THE PRESENT CONSTITUTION, . - 92 

Want of sanction to the laws, .... 92 

Want of a mutual guaranty of' the state goyernments, . 93 

Regulating state contributions to the treasury by quotas, . 94 

The proper remedy for this defect, . . . • 95 

The want of a power to regulate commerce, . . . 96 

Difficulties arising from separate state regulations, . . 97 
The raising of troops by quotas, . . . .98 

The right of equal suffrage among the states, an evil, . 98 

Reqiiiriiig a vote of two-thii-ds of the states is not a remedy, 99 

This principle gives scope to foreign corruption, . . 100 
Instances from history of officers of republics corrupted by for- 
eign poAvers, ..... 
The want of a judiciary power a crowning defect, 
. Necessity of a supreme tribunal, 

Present organization of congress unsuitable for an executive head, 103 
Propriety of the constitution being ratified by the people rather 

than by the states, . • . . . . 103 

XXIII. — The necessity of a government, at least equally energetic 

WITH THE ONE PROPOSED, ..... 104 

Necessity of union for the common defence, . ^ .104 

Power to raise armies and fleets necessary, . . , 104 

Powers of the present confederation insufficient, . . 105 

A weak government unsafe, ..... 106 
The poAvers must be co-extensive, with the objects of govern- 
ment, . . . . . . .107 

XXIV, XXV, XXVI, XXVII, XXVin. — The subject continued, with 

AN. ANSWER TO AN OBJECTION CONCERNING STANDING ARMIES, . l08 

The constitution vests the power of raising armies in the legisla- 
tive and not the executive branch, .... 108 

Standing armies not proliibited by the state constitutions, . 109 
Nor by the articles of confederation, . . . .109 

Dangers of invasion from foreign countries or savage' neighbors, 110 
Necessity of national troops to protect commerce, . . . Ill 
Difficulty of separate states protecting the frontiers, . . 112 

Armies of separate states more dangerous to liberty than those 
of the nation, . . . . • .113 

Objections to restrictions on the power of the government as to 
armies, ....... 113 

Militia cannot be relied upon alone for national defence, . 114 
Armies sometimes necessary in time of peace, . . 115 

Danger of making the government too feeble by restrictions, 116 
Vesting the power to raise armies in the legislature is a sufficient 
safeguard, . . ■ . . . . .117 

Effect of the limitation of appropriations to two years in the new 
constitution, . . . . . . .118 

Liberty cannot be subverted, nor large armies raised, without time, 119 
Dangers from armies less in a united than a disunited state, 120 

The idea that the laws of the union cannot be executed without 
force unfounded, . . . . . .121 

The national government will be as well administered as state 
governments, . . . . . .121 

It will be strengthened by extending into internal affairs, . 122 
And by operating on individuals rather than states, . 123 

The force occasionally necessary to execute the laws, an argu- 
ment for union, ...... 124 

The same necessity for force might exist in case of several con- 
federacies, . . ... . . 125 

Union the best safeguard against the representatives of the peo- 
ple usurping power, . . . . .125 



484 , INDEX. 

The state governments will secure the people against usurpation 

by national authority, ..... 126 

Extent of the country a further security, . . . 126 

No large military force can. be raised with our present resomrces, 12T 

XXIX. — Concerning the Militia. . ■ . . . . 12T 

Uniformity of organization and discipline necessary > . 121 

Power of the government to call out the po&&e comitatus dis- 
cussed, . . . . . . . 128. 

The idea of danger to liberty from the militia refuted, 129, 130 

Disciplined militia will lessen the necessity of a standing force, 130 
Appointment of officers by the states a safeguard to Liberty, 130 

XXX, XXXI, XXXII, XXXni, XXXIY, XXXV, XXXVL — Con- * 
cERNiNG Taxation. ...... 132 

A general power of taxation requisite, . . . 132 

Money the vital principle of the body politic, . . 132 

Defect of the confederation in this respect, . . . 132 

No remedy but in a change of system, . ^ . . 133 

Distinction between internal and external taxation unwise, 133 

Necessities of a nation equal to its resources, . . 134 

Impolicy of relying on requisitions on the states, . . 134 

Necessity of ample revenue power in time of war, . . 134 

Such power would give the government credit abroad, . 135 

First principles in politics, as in science, should command the 
assent of all, ...... 136 

Beasouing showing the necessity of a general power of taxation 
repeated, ....... 13T 

Objection, that such power would interfere with the power of 
states to raise revenue, answered, . . . .138- 

Danger of encroachment by the state, on th.e national govern- 
ment, greater than the opposite, . . . .13^ 

The constitution secures to the states ample power to raise theii^ 
own revenue, . .... . . .139' 

The exclusive powers of the federal government are limited, 140 

Power of imposing taxes, except on exports and imports, con- 
current, . . . . . , . . . 141 

Concurrent jurisdiction necessarily results from division of sove- 
reignty, ....... 142 

•Objections to the incidental powers of the government answered, 142 
The clause objected to, confers no powers not before granted, 143 
- The power to tax implies the power to make laws to enforce col- 
lection, ....... 143 

The express grant of incidental powers introduced through cau- 
tion, ........ 144 

The government must be its own judge when to exercise those 

powers, . . . , . . . 144 

It is no objection that the laws of the union are to be supreme, 145 
Only constitutional laws will be suprem'e, . . . 145 

Absurdity of denying the possibility of co-ordinate power, . 146 
Illustrations from Koman history, .... 146 

Objects ot federal government less limited than those of state, 147 
Ample revenue needful in time of war, . . . 148. 

And also to pay debts contracted in time of war, . . 140 

Concurrent jurisdiction the only safe substitute for subordination 
of state to national authority, .... 150 

Objections to restricting federal taxation to specific objects, 150 

It would lead to inequality of public burthens, . . 150 

Duties on the specific articles would be carried to excess, . 15 1 
This would lead to smuggling and other irregularities, . ,151 

Drawing revenue fix)m imposts only, productive of inequality 
among the states, . . . . . .151 

Objection that congress will not contain all classes of citizens 
answered, ....... 152 

Merchants will usually be selected to represent mechanics and 
manufacturers, . . . ... . 153; 



INDEX. 485 

The landed interest will be well represented, . . 153 

Not practicable for every class to be represented by its own 
members, . . . . . . • 154 

Men of extensive information will best represent all classes, _ 154 
Persons of strong minds in each class will necessarily rise to dis- 
tinction, . . . . . . .155 

Difficultieg attending internal taxation by congress discussed, 156 
Such taxes are usually digested by an individual or a limited board, 156 
Land taxes will be assessed by persons chosen for the purpose, 157 
The system of taxation of each state may be used in the state, 157 
The abuse of the power of taxation is cautiousljr guarded 

against, . . . . • _•_ 157, 158 

K found inconvenient to exercise this power requisitions may 

be resorted to, ...••• 158 

Reasons for not omitting the power from, the constitution, . ^ 158 
Possibility of interference of state and national atithority dis- 
cussed, ....... 158 

Double sets of revenue officers not often to be apprehended, 158 
Danger of a system of federal influence discussed, . • 159 

Danger of double taxation discussed, . . • 159 

Poll taxes not to be laid except in great emergencies, but the 
power to lay them necessary to pifovide for such occasions, 160 

XXXVII. — Concerning the difficulties which the convention must 

HAVE experienced IN THE FORMATION OF A PROPER PLAN, . 161 

DifSculty of investigating public measures with candor, . 161 
Allowance to be made for the novelty of the undertaking, . 162 
Difficulty of combining stability and energy with a due regard 

to liberty, . . . . . • .162 

Difficulty of marking the line of authority between the general 

and state governments, . . . • • _ 163 

Similar difficulties constantly experienced in defining the limits 

of different jurisdictions, ..... 164 
Difficulty enhanced by conflicting pretensions of larger and 

smaller states, ....■• 165 

And also by various combinations of interests, . • 165 

It is not wonderful if the constitution is defective, but rather that 
- it is not more so, ....•• 166 
Difficulty of reforming a constitution illustrated by the history 

of the Netherlaitds, . , . . • .166 

XXXVIII. — The subject continued, and the incoherence of the 

OBJECTIONS TO THE PLAN EXPOSED, .... 167 

Constitutions have usually been framed by individuals rather 
than by assemblies, . . . . • .16/ 

Examples from the history of Greece,. . . • 167 

History of the articles of confederation,' . . .168 

Obj.ections to their adoption failed to point out their real defect, 168 
In a critical disease, where physicians are unanimous as to the 
remedy, it is folly to regard the objections of persons unac- 
quainted with the disorder, . . . • .169 
Inconsistency of the objections made to the constitution by dif- 
ferent individuals, ..... 169, 170 

Improbability^ that the objectors themselves could agree upon any 

other plan of government, . . . • .171 

However defective the new constitution, it is less so than that 
which preceded, . . . . . .171 

Powers dangerous to liberty now exercised by congress without 
authority, ...... 172, 173 

XXXIX. XL. — The conformity of the plan to republican principles : 

AN objection in RESPECT TO THE POWERS OF THE CONVENTION, EXAMINED, 174 

The plan of government, if not strictiy republican, must be aban- 

dpned, .....•• 1^4 

The question, what constitutes a republic, discussed, . 174 

A republic defined to be a government deriving its power from 
the people, ...,..* 174 



486 INDEX. 

The constitution proposed, conforms to this standard, . 175 

Tenure of its offices, . . . . . .175 

Titles of nobility prohibited, . ' . . . .176 

Objection that the government is national and not federal, con- 
sidered, ....... 176 

The mode of ratification federal, . . . .176 

The constitution of the house of representatives is national, 177 

And that of the senate federal, .... 177 

The mode of electing ^president is of a mixed character, . 177 

In its operation the government will be national, but not exclu- 
sively, ....... 177 

In the extent of its powers, it is federal, . . . 178 

The mode of making amendments is mixed, . . . 178 

The constitution is therefore partly federal and partly national, 179 
The authority of the convention to frame the constitution dis- 
cussed, ....... 179 

Terms of the recommendatory acts, . . . . 179 

These acts authorized a national government, adequate to the 
exigency, . . . . . . .180 

They authorized the insertion of new articles of government, 
and the alteration of old ones, . . . .181 

The new constitution is an expansion of the principles of confed- 

. eration, ....... 182 

Reasons for requiring the ratification of only nine states at first, 182 
The constitution is of no force until ratified, . . 183 

"View of the critical circumstances under which the convention 
met, ....... 183 

Necessity of form yielding to substance, . . . . 184 

The question whether the convention exceeded its powers, does 
not affect the propriety of ratifying the constitution, . 185 

XLI, XLH, XLIII, XLIV, — General view of the powers proposed 

TO BE VESTED IN THE UnION, ..... 185 

The poAvers vested in the general government are no greater than 
needful, ....... 186 

Imperfection must exist in the best constitution, . . 186 

The pbwers are not too great for security against foreign dan- 
ger, . . . . . . . 186,187 

A standing army, 1:hough dangerous, may be necessary, . 188 

The union of the states the best safeguard against such danger, 188 
Limitation of the term of appropriations another security, 189 

Necessity of the power to maintain a navy admitted, . 190 

The whole seaboard interested in this power, . . 190 

Necessity of the power to levy and borrow money, . . 191 

The power of taxation is sufficiently defined and restricted, 192 

It is similar to that contained in the articles of confederation, 192 
The powers regulating intercourse with foreign nations necessary, 193 
The power to make treaties, and to send ambassadors, proper, 193 
Importance of consuls and commercial agents, , . 194 

The power to punish piracies and other crimes, an improvement, 194 
Reasons for the power of prohibiting the slave trade, and for its 
limitation, . . . . . . . 195 

The necessity of the powers regulating intercourse amongst the 
states, ....... 195 

^ Examples from liistory in illustration, . . .196 

The regulation of commerce with the Indians, discussed, . 196 
The power to coin and regulate the value of money, discussed, 197 
Propriety of uniform rules of naturalization, . . 197 

The powers over bankruptcy, the authentication of records, and 

the establishment of post roads discussed, . . .198 

The power over the copy-right of authors discussed, . 199 

The necessity of power over the district which may become the 
seat of government, ...... 199 

Powers of the government with regard to treason, . . 200 

As to the admission of new states into the union, . . 200 

As to the territory and property of the United States, . 201 



INDEX. 487 

Guaranty of a republican government and protection to each state, 201 
Necessity of national protection against invasion and domestic 

violence at times, . . . . . 202 

Minorities may prevail over majorities by force or stratagem, 203 
Power of paying debts contracted heretofore, discussed, . 204 
Provisions for amendments, and for ratitication, . . 204 

Defence of the mode of ratification proposed, . . 205 

Restrictions on the powers of the states, as to foreign alliances, 206 
As to coining moiiey, ... . . . . 206 

As to emitting bills of credit, , . . . . 207 

As to bills of attainder, ex post facto laws, and laws impairing 
the obligation of conti-acts, ...... 207 

As to laying duties on imports and exports, . . . 208 

The power of congress to make laws to carry into effect the 

granted powers, . . , > . . . 208 

Necessity of some such power, and practical difficulties in the 

way of any other method of arriving at it, . . 209 

Remedy in case of abuse of this power, . . . 210 

Why the constitution and laws of the United States must neces- 
sarily be supreme, . . . . . .211 

Why state officers are required by oath to support the federal 
constitution, . . . ... . .211 

XLV. A FURTHER DISCUSSION OF THE SUPPOSED DANGER FROM THE 

POWERS OF THE UNION, TO THE STATE GOVERNMENTS, . . 212 

It is no valid argument against the union that it lessens the pow- 
ers of the states, if it secures the public wehare, , . 212 

The tendency of confederacies is to strengthen the local, and 
■ weaken the general governments, . . . .213 

• Illustrations from history, . . . . 213, 214 

Advantage of state over federalgovernments in point of influence, 214 

The state governments exercise an agency in the election of pres- 
ident, senators and representatives, . . . .214 

A less number of persons employed by the national than by the 
state governments, ...... 214 

The powers of the federal government are few and defined, those 
of the states numerous and indefinite, . . .215 

The prox)osed constitution invigorates the original powers of 
the union, instead of vesting in it new powers, . . 216 

XL VI. — The sukject of the last paper resumed ; with an examina- 

flON OF THE COMPARATIVE MEANS OF INFLUENCE OF THE FEDERAL AND 
STATE GOVERNMENTS, . . . ; . . . 217 

Both national and state governments the agents of the people, 217 
The state governments will be nearest to the people, . 217 

A local spirit will influence members of the federal government, 218 
A federal government will have less power to resist acts of the 

states than the states those of the nation, . . 219 

States would unite to resist encroachments of the general gov- 
ernment, ....... 220 

The improbability of the government being permitted to accumu- 
late a military force, ..... 220 

Should such be the case, the armed miHtia would be a defence 
against it, . . . . . . ' . . 221 

XLVII. The meaning of the maxim, which requires a separation 

OF THE departments OF POWER EXAMINED, AND ASCERTAINED, 222 

Propriety of separating executive, legislative and judicial power, 222 

Examination of The British constitution, . . . 223 

Views of Montesquieu misapprehended, . . . 224 

Examination of state constitutions, .... 225 

Constitutions of New Hampshire and Massachusetts, . 225 

New York, New Jersy, Pennsylvania, Delaware, . . 226 

Maryland, Virginia, North Carolina, South Carolina, Georgia, 227 

XLVni, XLIX, L, LI. — The same sobject continued, with a view 

TO the means of giving efficacy IN PRACTICE TO THAT MAXIM, 228 



488 INDEX. 

The powers of one department ought not to be administered ot 
; controlled by any other, ..... 228 

Constitutional restrictions are insufficient barriers, . . 229 

In our republic, the legislative department is most dangerous, 229 

Illustrations from the history of Virginia, . . . 230 

Illustrations from the history of Pennsylvania, . . .231 

Executive encroachments in Pennsylvania, how accounted for, 232 

Examination of a constitution drawn up for the state of Virginia, 
by Jefferson, ....... 232 

Proposed mode of correcting breaches, t . . . 233' 

Objections to the mode, . . . . . • 233 

Danger of frequent resort to the people with constitutional questions, 234 
Influences which would tend to bias a decision, , . . 235 

Examination of the effect of periodical appeals to the people to pre- 
vent infractions of the constitution, .... 236 

Example of a convention in Pennsylvania to decide constitution- 
, al questions, ....... 237 

The government must be so framed, that its several parts will keep 
each other in place, . . . ... . 238 

COne department should have little agency in the appointment of 
another, ....... 239 

No department should depend on another for its emoluments, 239 

It should be made the interest of each to resist the encroachments 
of the other, ....... 239 

Remedy for the too great predominance of the legislative branch, ' 240 
The federative system a safeguard against usurpation of power by 
any department, ...... 240 

A multitude of differing interests another security, • . 241 

The extent and variety of interests in the United States fortunate, 242 

IjII, — Concerning thk house of representatives, with a view to 
the aualifigations of the electors and elected, and the term 

of service of the members, ' . . . . . 242 

Qualifications required in electors of representatives ; reasons for 

the rule, ....... 243 

Qualifications of persons to be elected, .... 243 

Term of office ; biennial elections safe, .... 243 

History of the English house of commons, . ^. . 244 

Example of the Irish parliament, ..... 245 

Example of the colonial legislatures, .... 245 

The federal legislature will possess less power than those referred to, 246 

And will be watched by the local legislatures, . . . 246 

1,111. — The same subject continued with a view of the term of service 

OF the members, ....... 246 

It is not necessary to liberty that elections shall in all cases be annual, 246 
Examples of the several states, . . . . . 24? 

The stretch of power exercised at times by the British parliament 

not to be apprehended here, ..... 247 

The question whether biennial elections are necessary or useful, 

discussed, . . . . • • • _ 248 

The extent of knowledge i^equired, demands a longer term of service 

than one year, '....... 248 

A knowledge of foreign affairs and relations will be desirable, . 249 
Minor considerations favorable to biennial elections, . . 260 

LIV. — The same subject continued, with a view to The RAtio of rep* 



RESENTATION, 



251 



Numbers the proper ratio of representation, . . . _ 251 

Objection to slaves being included with free persona in apportioning 

representation, considered, . . . • 251 

The position of the southern people on the question stated, 25 1> 252 

Slaves are not only "property but also persons in some "sense, . 252 
Injustice of including slaves for taxation, and excluding them for 

representation, ....... 252 

The fact that slaves do not vote considered, . ._ 252, 253 

Representation not assigned to the number of voters, but inhabitants, 253 



INDEX. 489 

Property as well as jjersons represented in the government, . 253 

The representation of states should bear some proportion to their 
comparative wealth, ,...•. 254 

LV. LVI. — The same subject continued, in helation to the total 

NUMBER OF THE BODY, ....... 255 

Objections to the smallness of the number concidered, . . 255 

Difficulty of determining the proper number, . . . 255- 

Comparison between the states as to the number of i'ej)resentatives, 256 

Rntio of representatives to the number of inhabitants in each state, 256 
The limited powers of congress a reason for a smaller number of 

members, ....... 253 

Rapid increase of population to be anticipated, and therefore of 

representation, . . . . . . . 257 

The present number safe for the present time, . . . 257 

Danger of corruption by foreign gold discussed, ■ . . . 258 

Danger from other branches of the government coasidfered, - . 258 
The principle that a representative should knov/ tiic interests of 

his constituents, discussed, ..... 259 

Objects of federal legislation examined, . . . ' . 260 

A few representatives may possess all the information necessary 

for regulating commerce and taxation, . . . 260 

Local knowledge not important in the regulation of the militia, 261 

Illustration from the example of the British parliament, . . 262 

LVII. — The SAME subject con'tinued, in relation to the supposed tendency 

op THE plan of the CONVENTION TO ELEVATE THE FEW ABOVE THE MANY, 263 

Objection that the representatives will be taken from the class 
sympathising least with the people, examined, . . 253 

. The objection strikes at the root of republican government, . 263 

Representatives are to be elected by all classes equally, . . 263 

No exclusive or aristocratic qualifications reqiiired, . . 263 

Motives which will impel them to be faithful to their constituents, 264 
The mode of election similar to that practised in the state governments, 265 
Th(f mode of election and qualifications compared with those of 

the British house of commons, . . ^ . . . 266 

Further illustrations from etections in some of the states , . 26 (J 

LVIII. — The same subject continued, in relation to the futup.k aug- 

ME.VTATION OF THK MEMBERS, . . . . . . 267 

Objection that the number of members will not be augmented in pro- 
portion to increase of population examined, . . . 267 

Provisions on this subject compared with those of the state constitu- 
tions, ........ 268 

Peculiarity in the constitution of the two branches of congress, which 
will secure attention to the subject, . . . .268 

Improbability of a majority of the senate succcasfuily opposing a 
due increase of representatives, ..... 260 

Remedy in the power of the house in case of such opposition, 269 

* Reasons why the senate will be more ready to yield in a contest 

than the house, . ....... 270 

Considerations against a numerous house of representatives, 270 

Reasons for not requiring more than a majority for a quorum, 271 

LIX, LX, LXI. — Concerning THE REGULATION OF ELECTIONS, . . 272 

Objection to congress controlling ultimately the mode of electing 
members, examined, ...... 272 

Every government should have the power of self preservation, 272 

To vest in the state government exclusive power of regulating electiona 

to congress, would place the union wholly at their mercy, 273 

The fact that the states have control over the election of senators no 

reason for giving them still greater power, . . . 273 

To give them power over the election of representatives, more danger- 
ous than power over that of senators, .... 274 

62 



490 INDEX. 

Tie interest of states to be represented in the federal cotlncils not a 

complete security against the abuse of such a power, . ' • 27& 

The idea that congress may favor the election of a particular class 

vmfounded, . . . • . . „■ . 27^ 

S-Rch an attempt would be prevented by general revolt, . . 276 

Improbability of the senate and house unitilig in such an attempt, 277 
No conceivable motive for such an attempt on the part of congress, 277 
Inquiry into the nature of the interests which would be likely to 

conflict, ....... 277, 278' 

The landed interest will usually predominate in this country, 278' 

Their natural preponderance will prevent any undue means to secure 

povsrer, = ....„.. 278' 

The interests of commerce will usually be safe with the landed interests^ 279' 
Impossibility of congress so regulating elections as to favor the 

wealthy class^ . ,» . . . . . 27^ 

Such a project^could not succeed without military force, and would 

awakeir an ^position which would at once defeat it, . . 280' 

A provision that all elections should be held in the electors' ovfn 

counties, woulTl furnish little security, . . . 280 

Comparison of the provisions in this respect, with those of the 

state constitutions, . , . . , .2811 

Probability that this power may be found aecessary for securing 

unifoi'mitj'' in the time of elections, . ■ . . . 282." 

Reasons why such s time is not ficaed in the constitution, , 280' 

LXII. — ' CONCKRNING THE eONSTITUTION OP THE SENAT^E, WITH REGARD TO- THE 
aUALIFICA-TIONS OK THE MEMBERS; THE MANNER OT APPOINTING THEM THE 
EaUALITY OP representation; the number OF THE SENATORS; AND THE 
EURATION OF THEIR APPOINTMENTS, . . . ... 28^ 

The qualifications proposed for senators, ...■.■ 284 
The appointment of senators by the state legislatures, . . 284 

The equality of the representation in the senaite, ,• ^ 284 

The equal vote a representation of state sovereignty, . . 285" 

The peculiar constitution of the senate a safeguard against improper 
legislation, ....... -285" 

Examination of the purposes for which a senate is required, 285* 

It is to- act as a eheck on the other branch, in schemes of usurpa- 
tion or perfidy, ...... 285, 286' 

Secandlj"-, in the tendency to yidd to sudden and violepjt passions, 286' 
Thirdly, to supply the want of due acquaintance with legislation by 
the house, . . . . . . , 28 6- 

Fo-ui'thly, to prevent mutability in the public councils, . 287 

Mischievous effects of s mutable government enumerated, . 287 

LXIII. A FBRTHER VIEW OF THE GON9TITUTJ0N OF TIfE SENATE, IN RES-AHD 

TO THE DURATION OF THE APPOINTMENT OF ITS MEMBERS, . . 288' 

The utility of a senate illustrated by the necessity of m due sense of 

national character, ...... 288^ 

Such a sense not to be- looked for ia a numerous and changeable 

body, . . . . . , , .28^ 

Arsenate will in some cases increase the responsibility of government 

to the people, a small body being more directly responsible than a 

larger one, ....... 289" 

Such a body may be sometimes necessary to save the people from 

temporary errors and delusions, .... 290 

Illustrations of the necessity of a senate from history, ' . 291 

Superiority of the American over the ancient republics in its form 

of government, . . . . . 291, 292 

Objection that the senate will acquire as dangerous preeminence in 

the government, examined, ..... 293 

Example of the senate of Maryland,. , . . > 293 

Example of the British parliament^ . , •■ • 294 

Example of ancient tepubiics, . . • . • 294 

The house of representatives will always be a safeguard against 

danger from, the senate, , , , » * 294 



INDEX. 491 

.IdXIV. "A FDRTUER VIEW OF THE CONSTITUTION OF THE SENATE, IS REGARD 

TO THE POWER OF MAKING TREATIES, .... 295 

The treaty making power one of great importance, , . 295 

Importance of system in the management of national affairs, . 296 
Projiriety of confiding the making of treaties to the more permanent 

officers of the government, ..... 296 

Wisdom of confiding affairs requiring secrecy and despatch to the 

executive in the first instance, . . . .297 

Objection that treaties, being of binding force, ought to be confided 

to the legislature, considered, . . . . . 298 

Treaties, being bargains or contracts, must necessarily be supreme, 298 
The requirement of two thirds of the senate to confirm treaties, a 

sufficient security that they will be wise and ^Droper ones, . 209 

LiXV, LX¥I. A FURTHER VIEW OF THE COSSTJTUTrON OF TFIE SENATE, IN 

RELATION TO ITS CAPACITY AS A COURT FCR THE TRIAL OF IMPEACHMENTS, 300 

Difficulty of providing a well- constituted court to try impeachments, 300 
Such a court is a national inquest into the conduct of public men, 301 
No other body than the senate sufficiently'' dignified and independent, 301 
Examination of the propriety of constituting the supreme court the 

court of impeachment, . . . . . .301 

Objection that after impeachment, the accused is still amenable to 

prosecution in the courts, . . . . '. 302 

It would be no real improvement to unite the court with the senate 

to try impeachments, . . " . . . . 302 

Objections to a coiut composed of persons distinct from the government, 303 
But if either of these plans would be preferable, it does not follow 

that the constitution should be rejected, . . . 303 

The objections to the senate trying impeachments examined, , 304 

Objection that it is uniting judicial aiid legislative power considered, 304: 
The constitution of New York still more objectionable in the same 

respect, « . . . . . . , 304, 305 

Objection that it accumulates too much power in the senate, answered, 305 
Objection drawn from the senate having an agency in appointments, 

considered, . . , . . . . . 306 

Objection derived from the union of the senate with the executive 

in making treaties considered, . . . « 307, 308 

LXVII. CONCF.KN'ING THE CONSTITUTION OF THE PRESIDENT: A GROSS 

ATTEMPT TO MISREPRESENT THIS PART OF THE PLAN DETECTED, 309 

The constitution of the executive department much assailed and mis- 
represented, ..'.... 309 

Representation that the constitution empowers the president to fill 
vacancies in the senate erroneous, , . . , 310 

Such vacancies are to be filled by the state executives, . . 311 

SiXVIII. — The view of the constitution of thi.; presjde.nt contin- 
ued, IN relation to the mode of APPOINTMENT, . . 312 

The mode of. electing president well guarded, . . .312 

By committing the election to men chosen for the purpose, the sense 

of the people will be felt, . . . " . .312 

The electors will be men well capable of analyzing the qualities 

adapted to the station, . . . . . ,512 

The mode of election will allow little opportunity for tumult or dis- 

ordei-, . . , • . . . . .313 

It guards against the operation of foreign influence, . . 313 

Improbability of the electors being misled b}/^ improper motives, ^14 

The office of the executive will depend on the people alone, . 314 
Statement of the plan of the convention, . . . .314 

The choice will seldom fall on one not duly qualified, . <, 314 

Eaasons for the choice of vice-president, . - . .315 

LXIX. — The same view continued,, with a comparison between the 

PRESIDENT AND THE KING OF GreAT BrITAIN, ON THE ONE HAND, AND 
THE GOVERNOR OF NeW YorK, ON THE OTHER, . . . 315 

Executive authority vested in a single magistrate, . . 315 

President elected for four years, and reeligible, . - .. 316 



492 INDEX. 



Liability to be impeacbed and removed from office, 



31G 



- Veto power of the president, ..... 316 

Command over the ^rmy, and bow limited, . . .317 

Power to make treaties, ...... 318 

Authority to receive ambassadors and ministers, . . . 319 

Power to nominate and appoint ambassadors, judges and other officers, 319 
Comparison between the power to be vested in the president, and that 
of the king of Great Britain, <,.... 320 

LXX. — The same view continued, in kelation to the unity of the ex- 
ecutive, AND WITH AN EXAMINATION OF THE PROJECT OF AN EXECUTIVE 
council, ........ 321 

Examination of the idea that a vigorous executive i& inconsistent 
witli republican genius, . . . . . .321 

Energy necessary to a good government, .^ . . 321, 322 

Inquiry how far energy and safety may be combined, . . 322 

jS'ecessity of unity in the executive, .... 322 

Teachings of history in this respect. .... 323 

A plurality of persons in the executive involves liability to disagree- 
ment aud inefficiency, . . . . . 323, 324 

Plurality in the executive tends to conceal faults and destroy respon- 
sibility, ........ 325 

In England, where the king is not accountable, a counsel is neces- 
sary, or tliere would be no responsibility, . . . 326 
In a republic, every magistrate should be personally responsible, 326 
Objections to an executive council, . . . 326, 327 

LXXI. — The same view continued in regard to the duration of the 

OFFICE, . . . . . . . . . 328 

Duration in office requisite to independence and stability of adminis- 
tration, ........ 328 

Pliancy to every breeze of popular passion not desirable in the execu- 
tive, ........ 328 

Neither is complaisance to the humors of the legislature, . 329 

Importance of the several departments being iudepend.ent of each other, S29 
A short executive term would tend to destroy independence, . 330 
Theteri^of four years is not too long to secure executive firmness 
and efficiency, ...... 330, 331 

LXXII. — The same view continued, in regard to the re -eligibility of 
THE president, . . . . . ' . . 331 

The officers having charg^of foreign negotiations, finance, the army 
and navy, &c., should be deputies to the president, and be appoint- 
ed and superintended by him, . . . . .331 

Inducements to which new presidents would be liable to change sub- 
ordinates, . . . . . . .332 

Ee;;ligibility connected in importance with duration of term, . 332 
The scheme of making the president ineligible to reflection, though 
plausible, is ill-founded, .... 332 

This provision would. diminish the inducements to good behavior, 332 
It would increase the temptations to peculation and usurpation, 333 

It would deprive the country of the benefit of the president's experi- 
ence, . . . ' . . . . . 333 

It would banish men from office in emergencies when greatly needed, 334 
It would operate as a constitutisnal interdiction of stability, . 334 
Examination of the supposed advantages of ineligibility to re- 
election, ...... 334, 335 

IJLKIII. — The same view continued, in relation to the provisions con- 
cerning support, and the powkr ok the ni:gative, . . 335 
An adequate provision for the support of the president necessary to 

vigor of authority, . . . • • • 336 

The constitutional provision is well guarded, . . . 336 

The competency of the powers vested in the president examined, 336, 337 

' The power ox a qualified negative upon legislative acts, . . 33T 

It will check the tendency of the legislative branch to absorb the 

powers of the other branches, ..... 33T 



INDEX. 493 

Tte objection that one man will not be wiser than a number of men 
examined, ....... 337 

The executive negative will enable him to defend himself, and to pre- 
vent hasty legislation, ...... 338 

The injury done by sometimes defeating a good law, will be more 
than compensated, ...... 338 

The powerful influence of the legislature will prevent the frequent 
use of the negative, ...... 338 

The danger of the negative being used too seldom rather than too 
often, . . . . . . . .339 

The provision is not for an absolute veto, but the return of a measure 
for reconsideration, . . '. . . • 339 

Reasons for the form of the provision as adopted, . . 340 

LXXIV. — The same view continueo, in relation to the command of 

THE NATIONAL FORCES, AND THE POWER OF PARDONING,, . . 341 

The propriety of the president commanding the military forces, con- 
sidered, ........ 341 

The power of pardouiug offences examined, . . . 341 

Expediency ot vesting this power in the president, .even in cases of 
treason, . .... . . . . 342 

Objections to any other course, . . . . . 342 

LXXV — The same view continued, in relation to the power of mak- 
ing TKKATIES, ........ 343 

Power of the president as to treaties stated, ' . . . 343 

The union of the president and senate in making treaties, not an ob- 
jectionable intermixture of powers, . . . . 343 

The treaty making power neither executive or legislative exclusively, 344 
Danger of vesting the sole power over treaties in the president, 344 

Objections to the senate exercising this power alone, . 344 

Objections to the house of representatives being associated in making 
treaties, ........ 345 

Objections to requiring two-thirds of the whole senate to ratify 
treaties, ........ 345 

The new constitution better secures the public as to the making of 
treaties, than the confederation, .... 346 

LXXVI. — The same view continued, in relation to the appointment 

OF the OFFICKRS of THE GOVERNMENT, .... 347 

Power of the president as to appointments defined, . . 347 

Impracticability of the body of the people exercising the appointing 
power, ........ 347 

The president will usually be a man of high ability, . . 348 

Having the sole responsibility, will lead the president to use great 
care in appointments to office, . . . . , . 348 

It does not follow that his power of appointing should be abso- 
lute, ........ 348, 349 

Advantages of the senate having a negative on his nominations, 349 

It will be an additional inducement to care in making nominations, 349 
Objection that the power of nomination will enable the president to 
control the senate, answered, ..... 350 

Safeguards provided by the constitution, . . . 350 

LXXVII. — The VIEW OP the constitution of the president concludkd, 

WITH a FURTHER CONSIDERATION OP THE POWER OF APPOINTMENT, AND A 
CONCISE EJCAMINA'JION OF HIS REMAINING POWKRS, . . . 351 

The consent of the senate will be necessary to displace as well as to 
appoint officers, . . . . . . .351 

This would jjrevent unnecessary changes, .... 351 

Objection that the senate will have too much influence over the ex- 
ecutive considered, . . . . . .351 

Comparison of the mode of appointment with that in the state of 
New York, ....... 352 

A mere council of axDpointment will be subject to intrigue, . 353 



494 INDEX. 

Impi-opriety of subjecting appomtments to the action of ihe house of 
repreispntatives, . . . . . . . 353 

The remaining powers of the president unobjectionable, , . 354 

Ihe provisions' of the constitution combine tlie elements of safety, 
dependence on the people and due responsibility, . . 354 

IjXXVIII, A VIEW OF THH CONSTITUTION OP THE JUDICIAL DEPARTMENT, 

IN HELATION TO THE TENUHE OF aoOD BEHAVIOR, . . , 355 

JMecessity of a federal judicature experienced under the confed- 
eration, ........ 356 

Mode of appointing the judges, ..... 355 

Tenure by which they hold oiRce, .... 356 

The tenure of office during good behavior is similar to the provisions 
in the best state constitutions, ..... 355 

Of the departments, the judiciary has the least power to invade con- 
stitutional rights, . ' . , . . . 366 
It is the weakest of the three departments, . . . 356 
The complete independence of the judiciary essential, . . 356 
Objection to the judiciary pronouncing legislative acts void, exam- 
ined, ... . . . . . . 357 

Interpretation of laws, the proper sphere of the courts, . . 357 

This power does not imply the superiority of the judiciary to the 
legislature, ....... 368 

Necessity of such a power shown by the case of two conflicting 
statutes, ....... 358 

Permanent tenure of judicial offices necessary to secure the constitu- 
tion from legislative encroachments, .... 359 

Independence of judges also requisite to guard individual rights from 

popular passions or prejudices at times, . . . 359 

It will likewise check the enactment of bad laws, * . . 380 

Inflexible adherence to right cannot be expected from courts not in- 
dependent, ....... 360 

Periodical apjDointments would be fatal to judicial independence, 360 
Permanency of judicial offices requisite, from the small number of 
persons who have the necessary^ skill in the laws, combined with 
integrity, . ' , . . . . . 360, 361 

3jXXIX. A FURTHER VIEW OF THE JUDICIAL DEPARTMENT, IN RELATION TO 

THE PROVISIONS FOR THE SUPPORT AND RKSPONSIBILITY OF THE JUDGES, 361 

A flxed iDTOvision for the support of the judges necessary to their in- 
dependence, ........ 361 

The provision of the constitution stated and defended, . . 362 

The liabilitj-- to impeachment secures the responsibility of the judges, 362 
Reasons agaiiist a provision for removing judges on account of ina- 
bility, . . . . . . . .363 

Objections to a limitation in respect to age, as in New York, . 363 

LXXX. A FURTHER VIEW OF THE JUDICIAL DEPARTMENT, IN RELATION TO THE 

EX'fENT OF ITS POWERS, . . . . . . . 364 

Cases to which the judiciarj"^ power of the union should extend, 364 
Necessity of a constitutional mode of giving efficacy to constitution- 
al provisions, ....... 364 

The judicial power must be coextensive with the legislative, . 364 
It must embrace all cases where the United States shall be a party, 366 
Also all cases involving the peace of the confederacy, as where for- 
eigners, states, or citizens of difl'erent states, are jferties, . 366 
Equality of privileges between citizens of different states the basis of 

the union, and should be enforced by a national tribunal, . 366 

All maritime cases should belong to the federal judiciary, . 366 

Provisions of the constitution as to the judiciary, stated, . 367, 368 

Beasoris for investijig it with equity jurisdiction, . . . 367 

These powers are conformable to the principles before laid down, 368 



INDEX. 49& 

LXXXi. — - A f'URTHEfl VIEW OF THE JUPIGIAL DEFARTEEST, IN RELA- 
TION TO THE DFSTRIBUTION OF ITS AUTIIOKITY, . . . 3531 

I'h.e necessity of a supreme court will not be contested, . SQ9 

The proposition that the senate should be the supreme court examined, 369' 
This would be an abondonment of the doctrine of a separation 
between the departments, . . . . . - 370 

The same body which had an agency in passing bad laws, would 

rarely be a suitable tribirnal to test their constitutionality, . 370 

Legislators will seldom be chosen with a view to the qualifications 
of judg;es, ....... 371 

The constitution foUovirg the example set by nine states, in ei'ccting a 
separate tribunal, . . . . . .371- 

No iegislatiue can rectify erroneous jiidicial decisions, except so far 
as to prescribe a new rule for futui-e action, . . . . 37l> 

'.Danger of judicial encroachments on legislative authority, imaginary, 37,1 
Propriety of the power to constitute inferior courts, . . 37:^' 

Heasons against the employment of state courts, as substitutes, 372 

Probability that the union will be divided into judicial districts, 373 

Distribution of judicial authority between the supreme and infe- 
rior courts, . . . . . , .373 

The supreme court to have original jurisdiction in eases affecting 

states and foreign ministers. . , , . , 373 

This provision does not give to federal courts power to enforce 
debts against states, ...... 374 

The notion that the clause giving appellate powers to the supreme 

court impairs the right of trial by jmy, examined, . . 374, 

The province of the supreme court Avill generally be to decide 
questions of law, ...... 375 

Congress will have power to restrict the supreme court from reexam- 
ining matters of fact, . . . . . .376 

LXXXII, A FARTHER VIEW OF THE JUDICIAL DEPARTMENT JN REFERENCE 

TO SOMK MISCELLANEOUS QUESTIONS, .... 377 

Examination of the question whether the state courts -will have con- 
current jurisdiction with the federal courts, . . . 377 
The states will retain pre;^xisting 'povrers, unless exclusively dele- 
gated to the federal authorities, .... 377 

State courts will continue to have the same jurisdiction as heretofore, 378' 
But it is not denied that congress may vest exclusive jurisdiction in 
the federal courts, ...... 378- 

Appeals would lie from state courts to the supreme federal court, 378' 
Considerations to show such appeals may lie to inferior federal courts, 37[>^ 

LXXXIII. — ^A FURTHER VIEW OF THE JUDICIAL DEPARTMENT IN RELATION 

TO THE TRIAL BY JURY, , ' . . • . . 380 

Objection that the constitution contains no provision for trial by jury 

in civil cases examined, . . . . . 380 

The effect of this omission, is not to abolish trial by jury in Such cases, 380 
Rules of legal interpretation discussed and applied to this provision, 381 
A power to constitute courts is a power to prescribe the mode of trial, 381 
Trial by jury shown to be in no case abolished, . . . 382 

Value of the the right acknowledged by all, . , , 382 

Eut its value is chiefly in criminal cases, . . . 385 

Examination of some of the alleged iises of trial by jury in civil cases, 383 
It is a security against corruption, . . . , 383 

It is an excellent mode of settling questions of property, . 384 

Difficulty of fixing a proper limit to a constitutional provision, 384 

Examination of varying rules in the several state constitutions, 384, 385 
Impracticability of any general constitutional rule, . . 386 

Trial by jury not advisable in all cases, .... 386 
It is generally disused in equity cases, . . ' . . 387 

Examination of a provision proposed by Massachusetts, . . 388 

Objections to adopting the provision contained in the constitution of 

New York, . . . . • m • .389 

All important interests sufficiently secured -without furtner provision, 390 



496 INDEX. 

LXXXIV. — Concerning SEVF.RAi, miscellaneous objections, . 391 

Objection to the want of a bill of rights considered, . . 391 

The constitution contains a number of provisions to secure individual 
rights, , . . . . ■. . .391 

The writ of habeas corpus and other provisions, imj)ortant safeguards 
of liberty, . . . . . . . 392 

Bills of rights originally concessions to the people by their rulers, 393 
Not consistent with a constitution made by the people themselves, 393 
Bills of rights may be dangerous, as implying the grant of all powers 
not expressly withheld, ...... 394 

Many provisions in bills of rights are too indefinite to furnish any se- 
curity to liberty, ...... 394 

The constitution itself is a bill of rights, .... 395 

Objection to the powers granted, that the seat of government will be 

too remote from many states to secure responsibility, examined, 395 
Hesponsibihty depends less on proximity than facility of communi- 
cation, ........ 398 

Objection that there is no provision as to debts due the United States, 
answered, ....... 396 

Objection to the probable (?xpense of the government, considered, 397 
Inquiry as to the supposed increase of offices, . . . 397 

The expense of additional officers will be counterbalanced by the 
shortening of the sessions of congress, .... 398 

The sessions of the state legislatures will also be much shortened, 398- 

LXXX v. — Conclusion, . . . ' . , ' . .399 

Resemblance of the constitution to that of the state of New York, 399 
Additional security it wiU afford to republican government, to liberty 
and property, . . . . . . . 400 

Manner in which the writer has endeavored to discuss the sub- 
ject of these papers, ...... 400 

Appeal to the readers to weigh the subject candidly and conscien- 
tiously, . . . . ". . . . 401 

The constitution, although not perfect, is in no respect radically de- 
fective, ........ 4Q1 

Folly of delaying action in expectation of a perfect i^lan being pre- 
sented, . . . . . . . 401, 402 

Improbability of a new convention presenting a preferable plan, 402 

Amenchnents to the proposed constitution wiU be more readily made, 

than a different system can be devised and adopted,' . . 402 

Any plan will involve differences of opinion and require concessions, 402 
Supposed obstacles in the way of» making amendments, considered, 403 
Congress required to call a convention on application of the legisla- 
tures of two thirds of the stages, .... 403 

Immediate adoption of the constitution urged, in view of the neces- 
sity of time and experience to ascertain and correct defects, . 404 



APPENDIX. 

The letters of Pacificus, — (Hamilton,) . . .405 

The letters of Helvidius, — ( Madison,) . . .432 

The original articles of confederation, . . . 460 

Constitution of the United States, .... 467 



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